Master of Arts Thesis
Euroculture University of Udine (Home)
University of Groningen (Host)
June 2014
The second stage of the Common European Asylum
System: towards more effective measures in the
protection of asylum seekers?
Submitted by: Giulia Tonel 103653 /S2485435 tonel.giulia@spes.uniud.it
Supervised by: Home University: Prof. Elisabetta Bergamini Host University: Prof. dr. H.B. Heinrich Winter
Udine, June 2nd, 2014
MA Programme Euroculture
Declaration
I, Giulia Tonel, hereby declare that this thesis, entitled “The second stage of the Common European Asylum System: towards more effective measures in the protection of asylum seekers?”, submitted as partial requirement for the MA Programme Euroculture, is my own original work and expressed in my own words. Any use made within this text of works of other authors in any form (e.g. ideas, figures, texts, tables, etc.) are properly acknowledged in the text as well as in the bibliography.
I hereby also acknowledge that I was informed about the regulations pertaining to the assessment of the MA thesis Euroculture and about the general completion rules for the Master of Arts Programme Euroculture.
Signed ……….
TABLE OF CONTENTS
List of Abbreviations ... 4
Introduction ... 5
1. History of Asylum in Europe ... 9
1.1 International Level ... 10
1.1.1 Geneva Convention 1951 ... 10
1.2 European Union Level ... 12
1.2.1 The Freedom of Movement ... 12
1.2.2 The Schengen Agreement and the Convention implementing the Schengen Agreement ... 13
1.2.3 The Dublin Convention ... 14
1.2.4 The Treaty of Maastricht ... 16
1.2.5 The Treaty of Amsterdam ... 18
2. The Common European Asylum System ... 20
2.1 The first stage of the Common European Asylum System ... 20
2.1.1 The Tampere European Council ... 20
2.1.2 The first stage of the Common European Asylum System ... 23
2.1.3 The Green Paper on the future Common European Asylum System ... 26
2.1.4 Changes introduced by the Treaty of Lisbon ... 29
2.2 The second stage of the Common European Asylum System ... 32
2.2.1 The revised Asylum Procedures Directive ... 33
2.2.2 The revised Reception Conditions Directive ... 37
2.2.3 The revised Qualification Directive ... 40
2.2.4 The recast Dublin Regulation ... 44
2.2.5 The recast EURODAC Regulation ... 49
3. Solidarity and Burden Sharing ... 53
3.1 The Principle of Burden Sharing ... 54
3.1.1 Financial Burden-Sharing ... 56
3.1.2 Physical Burden-Sharing ... 58
3.1.3 Harmonization of Asylum Policy ... 61
3.2 Conclusion ... 63
Conclusion ... 65
LIST OF ABBREVIATIONS
AFSJ Area of Freedom, Security and Justice
CEAS Common European Asylum System
EASO European Asylum Support Office
EC European Community
ECHR European Convention of Human Rights
ECRE European Council on Refugees and Exiles
EEC European Economic Community
ERF European Refugee Fund
EU European Union
EURODAC European Dactyloscopy
JHA Justice and Home Affairs
OJ Official Journal of the European Union
TEC Treaty establishing the European Community
TEU Treaty on European Union
TFEU Treaty on the Functioning of the European Union
INTRODUCTION
For over twenty years, the European Union has been working towards the establishment of a common system of asylum, aiming at the harmonization of national asylum systems and at a higher degree of protection to those people seeking asylum into the EU territory. In 2013 a very important step was taken: the second stage of the Common European Asylum System was agreed and the new “asylum package” was finally adopted.
The right to asylum has been one of the main priorities of the European Union since the Treaty of Amsterdam, which laid down the legal bases of the Common European Asylum System (CEAS). Before that, Member States were legally bound to the 1951 Geneva Convention and the 1967 New York Protocol, which set out who is a refugee, their rights and the legal obligations of states.
At the European level, the former European Economic Community (EEC) focused its commitment on the establishment of the internal market and, as a consequence, some measures were taken in order to develop an area without internal borders, where people can move freely within Community. This was then made possible through the adoption of the Schengen acquis. However, soon it became clear that freedom of movement could not be successfully achieved without harmonization of asylum policies at the European level. In this respect, Cecilia Malmström, the EU Commissioner for Home Affairs, recently stated in her speech during the conference “The Common European Asylum System: challenges and perspectives" in Sofia on 24 March 2014, that:
“Our Schengen Zone, our free movement mean that we have to have a Common European Asylum System. Because we cannot have a common free movement, open borders for citizens, joint rules on immigration, but no common asylum policy. It just would not work and, in fact, it did not before. The system was already unstable – so we had to fix it”1
The CEAS has its legal bases in the Treaty of Amsterdam and then, with the European Council in Tampere, the first policy program was put into place. There, some very important laws concerning the asylum process were established, setting out minimum standards of asylum protection with respect to procedure, qualification and receptions matters together with Dublin Regulation II and EURODAC. Although these first stage instruments were a very important achievement, it was just a first step, since some adjustments were needed. Very soon it became evident that these first provisions were not
satisfactory: EU laws were adopted by unanimity and were full of ambiguity and loopholes. As a result, the situation across Europe was very varied and the levels of protection were not strong enough, causing harm to the protection seekers.
For these reasons, the Commission decided to embark on a revision of the first stage instruments of asylum in 2007, opening a wide debate with the main stakeholders.2 This was definitely not an easy task since Member States come from different realities,3 some with a well-developed asylum system while others not even reaching minimum standards. Nonetheless, after a long and complex negotiation, the recast “asylum package” was adopted in 2013, being recognized an important achievement which might potentially contribute to harmonizing asylum system across the Union as well as enhancing the protection standards.4
The passage from the first to the second stage instruments marks an important change for the European Union, which now comprises 28 Member States. While the first stage legislation aimed to harmonise national legislations on asylum on the basis of common minimum standards of protection, the most important goals of the second stage aim to achieve a “higher common standard of protection and greater equality in protection across the EU as well as to ensure a higher degree of solidarity between EU Member States”.5 Therefore, the goals of the CEAS could be described as establishing a
European-wide fair and efficient asylum system.6
Following the goals of the second stage of the CEAS listed above, the aim of this thesis is twofold. Firstly, the main question that this thesis will seek to answer is:
Does the second stage of the CEAS provide applicants with a fairer and more effective system of protection?
In order to answer this question, all the second stage instruments will be analysed and it will be determined whether substantial changes have been made with respect to guarantees granted to applicants for international protection and specific rights they are entitled. Since the adoption of the recast directives and regulation is quite recent, this analysis will just be carried out by looking at the
2 Commission of the European Communities, Green Paper on the future Common European Asylum System, 2007.
3 Cecilia Malmström, Conference "The Common European Asylum System: challenges and perspectives", Sofia, 24 March 2014, http://europa.eu/rapid/press-release_SPEECH-14-244_en.htm?locale=en accessed on 28 May 2014.
4 UNHCR, Moving Further towards a Common European Asylum System - UNHCR’s statement on the EU asylum
legislative package, June 2013.
main changes between the first and second stage legislation, observing whether substantial improvements have been made. Secondly, the thesis wants to focus on the principles of solidarity and burden-sharing. In recent years, in fact, many Member States have observed that the CEAS must, in the future, take some concrete measures in order to increase solidarity among Member States.7 This claim is being made especially by those countries that make up the southern borders of the EU, such as Italy, Greece and Malta. These states have long demanded help from the EU institutions because of the increasing pressure they have been facing. These requests have been put into the EU agenda after what happened in Lampedusa in October 2013 where, just three months after the adoption of the second stage of the CEAS, more than 350 people between migrants and asylum seekers died when their boat sank off the coast of the Italian Island.8 So, in the light of what happened in Lampedusa and following the increasing number of asylum claims, with almost 435.000 applications registered in 2013,9 together with the much criticism that some EU measures have received because they are believed to “shift” rather than “share” the burden of refugees protection from northern to southern countries;10 this thesis will try to answer this second question:
To what extent EU burden-sharing initiatives have been effective in the context of the CEAS?
More specifically, following Noll’s categorization, these EU burden-sharing initiatives will be analysed: financial burden-sharing, physical burden-sharing and harmonization of asylum policy. To this end, it will be discussed whether EU burden-sharing initiatives have been effective in their scope, that is “promoting a balance of effort between Member States in receiving and bearing the consequences of receiving refugees and displaced persons”.11
In order to answer these two main research questions, this thesis will be divided in three main sections. In the first place, the historical background of asylum before the creation of the CEAS will be provided by means of an overview of the main international and European instruments. Therefore, two main
7 Goudappel and Raulus, The future of asylum in the European Union, 2011, p. 69.
8 Walter Mayr and Maximilian Popp, Lampedusa Tragedy: Deaths Prompt Calls to Amend Asylum Rules, Der Spiegel, 7 October 2013, http://www.spiegel.de/international/europe/lampedusa-tragedy-prompts-calls-for-eu-to-amend-asylum-agreement-a-926453.html accessed on 29 May 2014.
9Alexandros Bitoulas, Asylum applicants and first instance decisions on asylum applications: 2013, Eurostat, http://epp.eurostat.ec.europa.eu/cache/ITY_OFFPUB/KS-QA-14-003/EN/KS-QA-14-003-EN.PDF accessed on 27 May, 2014.
chapters will explain on the one hand, the international level with the Geneva Convention and the New York Protocol; on the other hand the evolution of asylum at European level with the Freedom of Movement, Schengen Agreement and Convention Implementing the Schengen Agreement, the Dublin Convention, the Treaty of Maastricht and, finally, the Treaty of Amsterdam.
The second section will be focused on the Common European Asylum System and it is divided in two main chapters: one dealing with the first stage of the CEAS while the second one will be focusing on the second stage of CEAS. The latter will be the main core of the thesis because it will analyse the main improvements introduced in the second stage instruments as well as the shortcomings that might affect applicants’ rights and protection. Respectively, the revised Asylum Procedures Directive, Reception Conditions Directive, Qualification Directive, Dublin Regulation and EURODAC Regulation will be tackled and examined.
The third section will be dealing with the principle of solidarity and burden-sharing. More precisely, the section will focus on the main EU burden-initiatives drawing on Noll’s categorization: financial burden-sharing, physical burden-sharing and harmonization of asylum policy.
1. HISTORY OF ASYLUM IN EUROPE
The history of asylum in Europe is quite recent within the European Union. Before the 1990s, asylum and refugee matters stayed outside the European are of intervention while the Internal Market project has always been one of the main focuses since the foundation of the European Economic Community (EEC). Before the establishment of the Common European Asylum System (CEAS), Member States were, as a matter of fact, bounded to the 1951 Geneva Convention and its provisions concerning the definition, status and treatment of refugees.
Before discussing CEAS and its directives, it is highly important to make an excursus on the main provisions laid down by the first international legal instruments concerning asylum and refugee status. In order to better understand the background of the EU asylum law and policies and to efficiently explain the main reasons that led to the establishment of a common system of asylum, the Geneva Convention and the New York Protocol will be examined. Consequently, this section will move from the international level to the European Union context, where the concepts of internal market and freedom of movement of persons will be deeply analysed since they laid the bases for the current European legal framework on asylum in Europe. Asylum policy, together with immigration and crossing of external borders matters, became central and passed from being a “matter of common interest” stated in the Third Pillar within the Treaty of Maastricht to being an European measure in the First Pillar with the Treaty of Amsterdam.12 For this purpose, this section will firstly draw on the Treaty establishing the European Economic Community (EEC Treaty) where the term “common market” became one of the principal aims and opened the way for what the European Union represents today: an area where a single market has been developed through a standardised system of laws and characterized by the freedom of people, goods, services and capitals. To this end, the abolishment of checks will be discussed through the explanation of the 1985 Schengen Agreement and the 1990 Convention implementing the Schengen Agreement. Moreover the freedom of movement in the European Community was connected to the Dublin Convention of 1990, which determined the Member State responsible for examining an asylum request. After introducing the Treaty of Maastricht, the 1997 Treaty of Amsterdam will be analysed as it provided the very first insight of a possible legislation concerning a common system of asylum. The more formal acknowledgment of the so-called Common European Asylum System was first mentioned in the European Council Meeting in Tampere in 1999,
12 Francesca Ippolito and Samantha Velluti, The Recast Process of the EU Asylum System: a Balancing Act between
however this point will be deeply discussed in the next section, followed by the explanation of each directive and regulation.
This historical overview is highly important in order to comprehend the current achievements of the Common European Asylum System and how the asylum law has been shaped within the European Union and how the institutions as well as the Member States have coped with the persistent issue of asylum.
1.1 International Level
1.1.1 Geneva Convention 1951
Refugee protection was firstly developed in the international law and dates back to the 1951 Geneva Convention and the 1967 New York Protocol. In this chapter the main provisions of these international and universal instruments will be examined.
Following the Universal Declaration of Human Rights signed in 1948, the 1951 Geneva Convention related to the status of refugees represents the centrepiece of international refugee protection today.13
Born as a post Second World War instrument, the Convention consolidates previous international measures concerning refugees and gives the first complete and most comprehensive codification of the rights and status of refugees at the international level.
What the Convention highlights in the first chapter is the definition of refugee, therefore defining who is and who is not a refugee as well as the causes that might cease this status. As stated in the first chapter of the Geneva Convention, the refugee status is defined as to follow:
“The term "refugee" shall apply to any person who: (2) As a result of events occurring before I January 1951, and owing to well-founded fear of being persecuted for reasons of race, religion, nationality or political opinion, is outside the country of his nationality and is unable or, owing to such fear or for reasons other than personal convenience, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear or for reasons other than personal convenience, is unwilling to return to it”.14
Not only the Convention specifies the status of a refugee, but it also provides the situations when a refugee ceases to be so. As stated in Art. 1(C)(1) to (6):
13 UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137.http://www.unhcr.org/3b66c2aa10.html [accessed 26 March 2014].
This Convention shall cease to apply to any person falling under the terms of section A if :
(1) He has voluntarily re-availed himself of the protection of the country of his nationality ; or (2) Having lost his nationality, he has voluntarily reacquired it ; or
(3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality ; or (4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution ; or
(5) He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality ; Provided that this paragraph shall not apply to a refugee falling under section A (1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality ;
(6) Being a person who has no nationality he is, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence ;
This chapter underlines the fundamental principles that have to be followed by the national governments, particularly non discrimination, non penalization and non-refoulement.15 The principle
regarding the prohibition of refoulement, as part of customary international law, is of a great importance, especially because it binds all States, even those who did not sign the 1951 Geneva Convention.16 From chapter II to V some provisions concerning the legal status of refugees, their rights (i.e. rights to access to the court, to primary education, to work, etc.) and duties in the country of refuge are discussed. The chapters VI and VII state to what extent the Contracting States are bound by this Convention and should cooperate with the United Nations High Commissioner for Refugees, such as executory and transitory provisions and final clauses.
The Protocol relating to the status of refugees (also known as the New York Protocol) entered into force on October 4th, 1967. While the 1951 Geneva Convention has restricted the refugee status to those persons who became refugees due to event occurring in Europe before 1st January 1951, the New York Protocol removed the temporal and geographical limits, broadening the applicability of the 1951 Geneva Convention.
15 the principle of non-refoulement concerns the protection of refugees from being returned to places where their lives are threaten on account of their race, religion, nationality, membership of a particular social group or political opinion. As set in the Article 14 of the Universal Declaration of Human Rights and Article 33 in the 1951 Geneva Convention, no Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his/her life or freedom would be threatened on account of his/her race, religion, nationality, membership of a particular social group or political opinion.
16 UNHCR, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951
1.2 European Union Level
1.2.1 The Freedom of Movement
As previously stated above, at the beginning because of the main focus of the European Economic Community at the internal market, asylum matters could not be dealt with at the European level. With the Treaty establishing the European Economic Community (or better known as the Treaty of Rome), the main goal of the construction of Europe was to develop a European economic market and to increase an economic integration among the Member States. The Treaty of Rome, as a matter of fact, just focused on the economic aspect, without taking into consideration people being citizens, migrants, refugees and asylum seekers. Through the 1986 Single European Act, the term “internal market” was officially introduced, highlighting the need for “an area without internal frontiers”.17 This might be possible by shifting controls from the internal borders (borders between the Member States of the Community) to the external borders of the Community, which would imply a loss of sovereignty for Member States over border checks and immigration matters. However, the elimination of physical frontiers would be a visible sign of integration while their existence would still be seen as a division within the Community.18 The freedom of movement of persons within the European Community would
embrace also third-country nationals (persons who do not possess the nationality of a Member State), including people in need of or asking for international protection. The removal of physical barriers, as a matter of fact, would involve harmonization of visas, immigration policy and asylum law.
At that time though, some Member States were quite reluctant to lose sovereignty in this field, especially as it comes to giving up control on the entry of third-country nationals. According to Ferguson Sidorenko19, all Member States were in favour of creating an internal market, but some were hesitant to transfer the competence related to the border control to the EEC. This is due to the fact that by abolishing the checks at the internal borders, everyone would be able to move freely within the Community, including third-country nationals. However, the idea of the internal market would not be
17 The Single European Act was the fist major revision of the Treaty of Rome. It was signed on 17th February 1986 and entered into force on 1st July 1987. In particular, art. 13 of SEA calls for the establishment of an internal market:
‘The Community shall adopt measures with the aim of progressively establishing the internal market over a period expiring on 31 December 1992, in accordance with the provisions of this Article and of Articles 8b, 8c, 28, 57(20, 59, 70(1), 84, 100a, and 100b and without prejudice to the other provisions of this Treaty. The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty.’
fulfilled without the abolishment of internal checks because “free movement of persons would not be really free if subject to checks at the internal borders”.20 For this reason the freedom of movement of persons as well as a connected policy on immigration and asylum did not occur right away.21 However, while some Member States were unwilling to open their borders, others aimed to do so outside the means of Community law and in 1985 these countries (Belgium, Netherlands, Luxemburg, Germany and France) signed the Schengen Agreement.
1.2.2 The Schengen Agreement and the Convention Implementing the Schengen Agreement
The Schengen Agreement was signed on 14 June 1985 between five of the ten Member States of the European Economic Community, respectively Belgium, Germany, France, Luxembourg and the Netherlands. These countries firmly believed that their people should have the right to move freely within the European Community in order to strengthen solidarity and increase integration by abolishing internal border checks, which were seen as natural obstacles to fulfill free movement of persons. Considering the fact that the European Community aimed to achieve an area of free movement of persons, goods and services, those countries agreed on the gradual abolition of checks on persons crossing a land border or those flying or taking a ferry between two Schengen countries, creating the so-called “Schengen Area”. Even though the agreement did not contain binding provisions concerning third-country nationals, it provided a framework of measures for the harmonization of rules on visa and provisions against illegal entry. Subsequently in 1990, the Schengen Agreement was overhauled by the Convention implementing the Schengen Agreement, which defined the technical and legal framework for the implementation of the previous agreement. These two treaties entered into force in 1995 and were consequently incorporated into EU law when the Amsterdam Treaty went into force in 1999. Since 1985, all EU Member States (except for the United Kingdom and Ireland) and two non-EU Member States (Norway and Iceland and Switzerland in 2009) became parties to the Schengen acquis. Through the adoption of the Schengen Agreement and the Convention Implementing the Schengen Agreement, the checks on persons were gradually abolished on the internal borders of the Contracting Parties, allowing the free movement of persons within the internal market. On the other hand, it is important to note that while Member States opened their internal borders, they also adopted a wide
20 Ibid.
range of measures to secure their external borders, where individuals are subject to stricter checks. Even though external borders remain under Member States’ competence, the European Union provides help through one of its main agencies: FRONTEX.22
The Schengen Agreement and the Convention Implementing the Schengen Agreement have been one of the main cornerstones of the European Union in terms of European integration, achieving what the European Economic Community aimed from its very beginning: an internal market as well as an area of free movement of persons.
The theme of asylum is particularly linked with the crossing of external borders of the EU. As a matter of fact, asylum seekers can apply for asylum at the border crossing points or in the territory of the Member States. To this end, the next paragraph will be dealing with the 1990 Dublin Convention, which provides provisions on responsibility for processing applications for asylum.
1.2.3 The Dublin Convention
The very first measures in terms of asylum can be found in the 1990 Dublin Convention. Following the Convention Implementing the Schengen Agreement, the Dublin Convention was signed on 15 June 1990 and entered into force on 1 September 1997 for the first twelve signatories (Belgium, Denmark, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain and the United Kingdom), on 1 October 1997 for Austria and Sweden and on 1 January 1998 for Finland. As for the Schengen Agreement and the Convention implementing it, the Dublin Convention fell under the international law until 2003 when, replaced by the Dublin Regulation, it officially became a Community instrument and, together with EURODAC, the cornerstone of the Dublin System. Moreover, the Dublin Convention replaced the Schengen Agreement provisions related to asylum through the so-called Bonn Protocol, signed in Bonn on 26 April 1994. 23
The Dublin Convention is really important because it is the first treaty that introduced precise criteria for determining the State responsible for examining an application for asylum lodged in one of the Member States of the European Community. As stated in the official document, the main purpose is:
22 European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, established in 2005.
“[…] to take measures to avoid any situations arising, with the result that applicants for asylum are left in doubt for too long as regards the likely outcome of their applications and concerned to provide all applicants for asylum with a guarantee that their applications will be examined by one of the Member States and to ensure that applicants for asylum are not referred successively from one Member State to another without any of these States acknowledging itself to be competent to examine the application for asylum”.
As one can catch by examining this treaty, the main goals are preventing asylum shopping,24 (which would have been facilitated through the creation of the internal market) by establishing criteria for determining the State responsible for analysing an application; and to avoid or at least to reduce the number of “orbiting” asylum seekers.25 Article 3 is of a major importance for the Convention. As a
matter of fact, it specifies that a Member State has the duty to examine, in accordance with its national law and its international obligations, an asylum application. The Convention lists the criteria for determining which State has the responsibility for examining an asylum application. The first criterion listed is related to family reunification: whether the applicant for asylum has a member of his or her family who owns the status of refugee in a specific Member State, that State shall be responsible for examining that application, on the condition that the applicant wishes to do so. 26 Secondly, the Member State who issued a valid residence permit or visa is responsible (even though some exceptions are listed).27 Fourthly, in case of illegal entry by an applicant for asylum, the Member State this entered shall be responsible.28 Fifthly, if an applicant entered legally into a State, that country should be responsible for the control of that entry as well as for examining the application for asylum, except if the application for asylum was lodged in another Member State and in both States the visa obligation is not required.29 Eventually, if no Member State can be selected on the basis of the criteria listed above, the first Member State where the application for asylum was made shall be responsible for examining it.30 These criteria do not really consider the asylum seeker’s choice but rather the conditions of his/her access to the European Community as well as his/her personal conditions.31
With the Council Regulation No 2725/2000 of 11 December 2000, an important provision was established in accordance with the 1990 Dublin Convention and in order to increase its effectiveness:
24 Practise of asylum seekers of applying for asylum to several Member States at the same time.
25 Individuals that fail to find a state willing to examine their asylum applications and therefore shuffled from one Member State to another in a constant search of asylum.
26 Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities - Dublin Convention OJ C 254, 19/08/1997, Art. 4
27 Ibid. Art. 5 28 Ibid. Art. 6 29 Ibid. Art. 7 30 Ibid. Art. 8
31 Clotilde Marinho and Matti Heinonen, Dublin after Schengen: Allocating Responsibility for Examining Asylum
the EURODAC system (European Automated Fingerprint Recognition System). The purpose of this regulation was to introduce a system for registering and compering fingerprints of asylum seekers and illegal immigrants. The EURODAC system will be deeply discussed in the second part of the thesis while analysing the Common European Asylum System. However it is important to note the great impact that this provision would have on the Dublin System: it will definitely help the use and exchange of information on third country nationals in order to avoid asylum shopping and “refugee in orbit”.32
After this brief overview, one can find limitations and shortcomings on the Dublin Convention, and some of them are still discussed and controversial nowadays.33 However, although it did not harmonize asylum law, it definitely opened the way for an initial harmonization in terms of asylum.34
1.2.4 The Treaty of Maastricht
An important attempt to bring immigration matters closer within the field of Community law was made in 1992 as the famous Treaty of Maastricht was signed. This Treaty (officially the Treaty establishing the European Union) was signed on 7 February 1992 and entered into force on 1 November 1993. It officially changed the name of the European Community in the now-called European Union and opened the way for the creation of the single European currency, the euro. The Treaty of Maastricht also created the pillar structure of the European Union, where three main pillars were established: the European Community (EC) pillar, the Common Foreign and Security Policy (CFSP) pillar, and the Justice and Home Affairs (JHA) pillar, also called the First, the Second and the Third Pillar, respectively. While the First Pillar referred to those areas where the EU’s supra-nationals institutions35 had more powers, the Second and the Third Pillar were more intergovernmental in nature and, therefore, where national governments still maintained their decisive role. Since then, the policies related to the second and third pillars fell under the area of international law and intergovernmental cooperation within the EU.36 In the matter of asylum, it is important to highlight a clear interest by the newly founded European Union to improve this field and to pursue the aimed free movement of
32 Ibid, p. 5 33 Ibid. p. 7
34 Olga Ferguson Sidorenko, The Common European Asylum System, p.19.
persons. As a matter of fact, according to Article K.1 of the Treaty on European Union37, Member States shall consider these areas stated below as “matters of common interest”:
1. asylum policy;
2. rules governing the crossing by persons of the external borders of the Member States and the exercise of controls thereon;
3. immigration policy and policy regarding nationals of third countries; (a) conditions of entry and movement by nationals of third countries on the territory of Member States; (b) conditions of residence by nationals of third countries on the territory of Member States, including family reunion and access to employment; (c) combatting unauthorized immigration, residence and work by nationals of third countries on the territory of Member States;
4. combating drug addiction in so far as this is not covered by 7 to 9;
5. combating fraud on an international scale in so far as this is not covered by 7 to 9; 6. judicial cooperation in civil matters;
7. judicial cooperation in criminal matters; 8. customs cooperation;
9. police cooperation for the purposes of preventing and combating terrorism, unlawful drug aspects of customs cooperation, in connection with the organization of a Union-wide system for exchanging information within a European Police Office (Europol).
As stated in Article K.2 TEU, asylum policy as well as the other matters should be dealt with in compliance with the European Convention for the Protection of Human Rights and Fundamental Freedom (ECHR) and the 1951 Geneva Convention and the following amendments in the 1967 New York Protocol.
However, even though, as one could notice, asylum was listed at the first place as a “matter of common interest”, it did not really experience improvements at the EU level. On these matters, in fact, the Council could take some measures just by unanimity voting and, therefore, the long procedures and the need for unanimity made decisions and possible actions under the Third Pillar not really effective.38 This highlighted the shortcomings of the Maastricht Treaty as far as the Third Pillar was concerned, hence where the EU had limited powers.
37 European Union, Treaty on European Union (Consolidated Version), Treaty of Maastricht, 7 February 1992, Official Journal of the European Communities C 325/5, http://www.hri.org/docs/Maastricht92/mt_title6.html.
1.2.5 The Treaty of Amsterdam
Following the Intergovernmental Conference (IGC)39 launched at the Turin European Council in March 1996 and resulting in the need of more substantial changes to the Maastricht Treaty, the Treaty of Amsterdam was signed on 2 October 1997 and entered into force on 1 May 1999.
Among the main objectives of this Treaty that can be found in Article B, which amended the previous one in the Treaty of Maastricht, one states that the Union aims to:
“[…] maintain and develop the Union as an area of freedom, security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime;
As stated above, the European Union wants to achieve an “area of freedom, security and justice” and, for this reason, the Treaty of Amsterdam introduced a new title headed “Visas, asylum, immigration and other policies related to free movement of persons”. As a matter of fact, asylum and immigration firstly referred as “matters of common of interest” within the Third Pillar, evolved into becoming European measures and were moved to the First Pillar. This means that competencies in policies regarding asylum, immigration, visas, control on external borders and judicial cooperation in civil matters were transferred from the national to the supranational level. However, since this process takes time, the Treaty established that, within a period of five years after the entry into force of the same treaty, the Council had to adopt:
“[…] measures aimed at ensuring the free movement of persons in accordance with Article 7a, in conjunction with directly related flanking measures with respect to external border controls, asylum and immigration, in accordance with the provisions of Article 73j(2) and (3) and Article 73k(1)(a) and (2)(a), and measures to prevent and combat crime in accordance with the provisions of Article K.3(e) of the Treaty on European Union”40
Following, while Art. 62 TEC dealt with border control and visa checks, providing indications and instructions on that, Art. 63 (1) and (2) TEC defined some provisions respectively on asylum seekers and on refugees and displaced persons, allowing the Community to issue legislation on this matters. Moreover, Art. 63 (3) provided some measures in terms of immigration. With regard to Art. 63 (1)
39 Term used to describe those conferences and negotiations between Member States governments with the aim of amending the Treaties.
establishing criteria on asylum, it stated that the Council should adopt measures on asylum in the following areas:
-‐ Art. 63 (1) (a) criteria and mechanism in order to determine which Member State is responsible for examining an application for asylum;
-‐ Art. 63 (1) (b) minimum standards on the reception of asylum seekers in Member States;
-‐ Art. 63 (1) (c) minimum standards with respect to the qualification of nationals of third countries as refugees;
-‐ Art. 63 (1) (d) minimum standards on procedures in Member States for granting or withdrawing refugee status.
It is important to highlight that the Treaty of Amsterdam did not want to introduce and establish immediately an “area of freedom, security and justice”, but aimed to do that gradually by giving some time restriction and mechanisms in order to achieve this goal.41 However, this could be recognized as a definite step leading towards an Europeanization of policies regarding asylum and immigration, raising the importance of giving much responsibility to the Community as a whole rather than being an exclusive competence of Member States.
The establishment of the Common European Asylum System (CEAS) has become a priority for the European Union and it actually finds its legal basis on the Treaty of Amsterdam, which transferred the issue of asylum from the Third Pillar to the First Pillar. However, this Treaty did not yet enable the Union to take binding decisions on these matters and, therefore, a further necessary step was needed. It lasted until October 1999 when, during the European Council held in Tampere, the Common European Asylum System was set as one of the main goals, which would lead towards the development of the Union as an “area of freedom, security and justice” as previously established in the Treaty of Amsterdam.
The following chapter will illustrate and examine the current common legislation on asylum, beginning by the 1999 Tampere European Council and then describing each directive and regulation that are part of the Common European Asylum System. The section will respectively analyse the Asylum Procedures Directive, the Qualification Directive, the Reception Condition Directive, the Dublin
41 Francesca Ippolito and Samantha Velluti, The Recast Process of the EU Asylum System: a Balancing Act between
Regulation, the Eurodac Regulation. Following, the concepts of harmonisation and burden sharing will be discussed and link to the main topic.
2. THE COMMON EUROPEAN ASYLUM SYSTEM
This section will address the process of the Common European Asylum System. Starting from the Tampere European Council in 1999, the main passages that characterized the building process of the CEAS will be discussed. While the first stage directives and regulations will just be mentioned very quickly, much more emphasis will be given to the second stage instruments and all the main changes will be analysed and assessed. By comparing the first and the second stage directives and regulations and by drawing on different authors’ contributions in this field, the final purpose of this section is to provide an overview of how the CEAS and provisions regarding asylum in Europe have been tackled recently. Also, this section will investigate whether positive changes have been made lately, or whether EU institutions, once again, missed the opportunity to enhance the system and provide applicants for international protection with a fairer and better system throughout the Union.
2.1 The first stage of the Common European Asylum System
2.1.1 The Tampere European Council
The most important milestone in the creation of a common policy on asylum dates back to the European Council held in Tampere on 15-16 October 1999. This conference was intended to enhance the provisions laid down by the Treaty of Amsterdam in terms of asylum, providing general guidelines in this matter and enabling the Union to fully develop an “area of freedom security and justice”. The Council set some objectives at the very top of the political agenda and it was also determined to carry them out as soon as possible.
movement of persons within the Union, such freedom should be guaranteed in a condition of security and justice accessible to all. Accordingly, freedom should not be just an exclusive feature of the Union’s own citizens42 and, for this reason, the European Council stated that “It would be in contradiction with Europe’s traditions to deny such freedom to those whose circumstances lead them justifiably to seek access to our territory”.43 As one could observe from this statement, the Council expressed its interest for the development of the Union as an “area of freedom, security and justice”, where also asylum seekers and refugees can enjoy the freedom of movement within the Union. To achieve this, an intervention with respect to the asylum matter was needed and, as a matter of fact, the European Council called for a common EU asylum and migration policy. To this end, the Council reaffirmed the highest priority for the Union and its Member States to respect the right to seek asylum and, consequently, it committed itself to working towards the establishment of the Common European Asylum System, in compliance with the Geneva Convention and its principles. The system should encompass, in short term:
-‐ a clear and workable determination of the State responsible for examining an asylum application;
-‐ common standards for a fair and efficient asylum procedure; -‐ common minimum conditions of reception of asylum seekers;
-‐ approximation of rules on the recognition and content of the refugee status.
A particular mention is also given to subsidiary protection, referring to the fact that an appropriate status should be granted to those people in need of such protection. 44
In a longer term, instead, Community rules “should lead to a common asylum procedure and a uniform status for those who are granted asylum valid throughout the Union”.45 Furthermore, the European Council recognised the need of particular instruments with respect to the issue of temporary protection for displaced persons, especially in those period of mass influx of refugees and displaced persons,
42 Olga Ferguson Sidorenko “The Common European Asylum System, Background, Current State of Affairs, Future Direction”, The Hague, 2007, p. 28.
43 European Union: Council of the European Union, Presidency Conclusions, Tampere European Council, 15-16 October 1999, 16 October 1999.
promoting solidarity between Member States46 as well as adopting the system for the identification of asylum seekers (EURODAC). 47
The Tampere European Council decided to divide the matter of asylum from the one of immigration because, even though closely related to each other, they represent two different issues and therefore should be dealt with separately. The different procedures can be understood because asylum seekers are not voluntary migrants but are forced to apply for asylum and international help unlike economic migrants who seek a better life in economic terms in another country. 48
The Presidency Conclusions highlighted that, while it is essential to shape a common policy on asylum and immigration, allowing a free movement within the Union to those people that, for obvious circumstances, seek access to the EU territory, it is important to strengthen control at the external borders in order to prevent and stop illegal immigration and the organized crime involved in the trafficking of human beings. Furthermore, as one can gather, one of the main intentions of the Council is to prevent asylum shopping. Avoiding asylum shopping was also one of the main goals of the 1990 Dublin Convention, subsequently protracted in the Dublin II Regulation, which developed a hierarchy of criteria determining the Member State responsible for examining a request of asylum.
In the section “free treatment of third country nationals”, the Council puts emphasis on the fact that the Union “must ensure fair treatment of third country nationals who reside legally on the territory of its Member States”.49 This statement assumes that refugees whose status has been recognized should enjoy
the same rights as those enjoyed by EU citizens and by third country nationals legally residing in Europe.
In conclusion, one can say that the Tampere Presidency Conclusions provided a political stimulus to the EU policy in the field of asylum and migration and established for the first time the idea of a “ Common European Asylum System”. As a natural process begun with the creation of the internal market and the gradual abolition of checks on persons at the common internal borders between Member States, further measures to harmonize legislation on asylum seekers were necessary in order to fulfill the “area of freedom, security and justice”. For this reason, the establishment of CEAS represents the corollary of this process, in order to harmonize legislation on asylum and to increase the European Integration. Moreover, the harmonizing effects that CEAS aims to produce in national legislation
46 Ibid., par. 16. 47 Ibid., par. 17.
48 Olga Ferguson Sidorenko , The Common European Asylum System, Background, Current State of Affairs, Future
Direction, The Hague, 2007, p. 29.
would prevent a “race to the bottom”50 between national legislators. 51 Furthermore, the adoption of the directives in the framework of CEAS will not only strengthen the powers of the Union, due to the transferring of national sovereignty to the EU level, but it would also open up the way for a period of decision-making on asylum matters, increasing public attention on this issue.
After having introduced the main provisions set by the European Council in Tampere, the following chapters will describe the process that lead from the first to the second stage of the CEAS. Consequently, the provision adopted in the second phase of the CEAS will be addressed.
2.1.2 The first stage of the Common European Asylum System
Since 1999 the EU has been working towards the establishment of the Common European Asylum System, implementing and improving the current legislative framework. As one may have acknowledged by reading the first part of this thesis, the Amsterdam Treaty was the first to tackle the issue of asylum and migration at the European level, providing binding instruments and allowing the Commission to initiate legislation on that. As a matter of fact, asylum and migration matters were transferred from the Third Pillar, where unanimous decision by all Member States and intergovernmental decision-making process were required, to the First Pillar, where the EU institution had more power and impact. The principle aims of the Amsterdam Treaty was working towards the establishment of an “area of Freedom, Security and Justice”, where free movement of persons is guaranteed by taking appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime. Some months after the entry into force of the Treaty of Amsterdam, towards the end of 1999, the Finnish town of Tampere hosted the European Council. There the Tampere Programme (1999-2004) was agreed, providing the overall policy agenda towards the establishment of the “Area of Freedom, Security and Justice” together with the Common European Asylum System. To this end, two different main groups of provisions and aims were pointed
50 Situation in which the Member States compete to discourage asylum seekers flocking at their borders by making stricter rules, limiting admission standards and lowering recognition rates (see Dimiter Toshkov & Laura de Haan, The
Europeanization of asylum policy: an assessment of the EU impact on asylum applications and recognitions rates)
out: the first one that should be achieved within a short period of time and the second one that can be achieved in a longer term.
In the period of time between 1999 and 2005, many legislative measures harmonizing common minimum standards in terms of asylum were adopted.52 This process took place within the so-called first stage of CEAS, where the main goal was to harmonise Member States legal framework with respect to the common minimum standards while ensuring fairness, efficiency and transparency.53 The first stage of CEAS comprised four main legislative blocks:
-‐ Regulation (EC) 343/2003 ("Dublin Regulation")
-‐ Directive 2003/9/EC ("Reception Conditions Directive,") -‐ Directive 2004/83/EC ("Qualification Directive")
-‐ Directive 85/2005/EC ("Asylum Procedures Directive")
The first stage, which included three directives and one regulation, was eventually completed in 2006 under The Hague Programme (2004), which in turn, introduced the call for the development of the second stage of CEAS as stated:
“The aims of the Common European Asylum System in its second phase will be the establishment of a common asylum procedure and a uniform status for those who are granted asylum or subsidiary protection. It will be based on the full and inclusive application of the Geneva Convention on Refugees and other relevant Treaties, and be built on a thorough and complete evaluation of the legal instruments that have been adopted in the first phase”54
Furthermore:
“The European Council urges the Member States to implement fully the first phase without delay […] The Commission is invited to conclude the evaluation of first-phase legal instruments in 2007 and to submit the second-phase instruments and measures to the Council and the European Parliament with a view to their adoption before the end of 2010”55
The Hague Programme was the second multiannual programme in the AFSJ adopted by the European
52 Common European Asylum System http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/asylum/index_en.htm accessed 30 April 2014.
53 Green Paper on the future Common European Asylum System COM(2007) 301 final, 2007, p.2. 54 The Hague Programme (2005/C 53/01), p.3
Council for the period 2005-2009. In order to carry out this programme, the Commission was invited to present an Action Plan including implementing measures and timetables. Consequently, the Commission planned ten priorities for the Union in order to strengthen the AFSJ in the next five years and, besides further developing the Common European Asylum System, as stated above, the Commission aimed at: strengthening fundamental rights and citizenship; introducing anti-terrorist measures; defining a balanced approach to migration; developing integrated management of the Union’s external borders; maximizing the positive impact of immigration; striking the right balance between privacy and security while sharing information; developing a strategic concept on tackling organised crime; guaranteeing a genuine European area of justice; sharing responsibility and solidarity.56
With respect to the Common European Asylum System, the The Hague Programme prompted the Member States to put into effect all the provisions of the first stage of CEAS as well as asking the Commission to evaluate the legal instrument of the first stage by 2007 and to provide the second phase instruments to the Council and European Parliament by the end of 2010. Furthermore, the Action Plan implementing the The Hague Programme set out what should have been achieved within the framework of the Common European Asylum System by 201057:
2.3 COMMON EUROPEAN ASYLUM SYSTEM
a) Adoption of the Asylum Procedures Directive (2005)
b) Conclusion of the so-called “parallel agreements” with Denmark in Dublin II and Eurodac (2005)
Evaluation of the first phase legal instruments
c) Monitoring the transposition and implementation of first phase instruments (2005 ongoing)
Second phase of development of a Common European asylum system, establishment of a common asylum procedure and a uniform status for those who are granted asylum or subsidiary protection
d) Proposal on long‐term resident status for beneficiaries of international protection (2005)
e) Second‐phase instruments and measures to be presented to the Council and the European Parliament (adoption before the end of 2010)
Studies on the implications, appropriateness and feasibility of joint processing of asylum applications
f) Study on the joint processing of asylum applications within the Union (2006)
g) Study, to be conducted in close consultation with the United Nations High Commissioner for Refugees (UNHCR), on joint processing of asylum applications outside EU territory, (2006)
Cooperation between Member States relating to the Common European asylum system, after the
56 Council and Commission Action Plan implementing the Hague Programme on strengthening freedom, security and justice in the European Union (2005/C 198/01).
establishment of a common asylum procedure
h) Establishment of structures involving the national asylum services of the Member States for promoting cooperation (Communication — 2005)
i) Establishment of a European support office in charge of all forms of cooperation concerning a common asylum system on the basis of an evaluation
Establishment of the European Refugee Fund (ERF) 2005 to 2013 to assist Member States in the processing of asylum applications and in the reception of certain categories of third‐country nationals
j) Final Report on the European Refugee Fund (2005)
k) Proposal for amending the European Refugee Fund decision to assist Member States in the reception of certain categories of third‐country nationals (2005)
l) Approvals of European Refugee Fund national multi-annual programming (2005, 2008 and 2011)
Though the European Council welcomed the achievements accomplished during the Tampere Programme, such as the foundations laid for a common asylum and immigration policy and harmonization in many other areas, it urged to undertake new measures to face the upcoming challenges. This is the reason why the Council adopted a new multi-annual programme with the intent of, first among everything, providing “[…] protection in accordance with the Geneva Convention on Refugees and other international treaties to persons in need”58, thus listing new objectives in order to improve the CEAS and to provide further harmonization between Member States. This surely sounded as a very ambitious programme and, for this reason, the The Hague Programme together with the 2005 Action Plan were the first to offer an important reference frame to understand the policies on migration and asylum as well as policies on security and police and judicial cooperation in criminal matters. These programmes facilitated the more rapidly achievement of some of the objectives set out in those years, allowing the development of the Common European Asylum System.59
2.1.3 The Green Paper on the future Common European Asylum System
In 2007, the European Commission released a “Green Paper on the future Common European Asylum System” which, more or less, encompassed the same goals on asylum and migration matters included in The Hague Programme. More precisely, the document states: “ This Green Paper aims to identify
58 The Hague Programme (2005/C 53/01), p. 1.
59 Ezio Benedetti, Il Diritto di asilo e la protezione dei rifugiati nell’ordinamento comunitario dopo l’entrata in vigore del
what options are possible under the current EU legal framework for shaping the second stage of the construction of the CEAS”.60 Taking into consideration the future shape of the second stage of the CEAS, the Commission declared that the main goals should be to achieve“[…] a higher common standard of protection and greater equality in protection across the EU and to ensure a higher degree of solidarity between EU Member States”.61 To this end, the Commission proposed many new measures
in order to create “an integrated, comprehensive approach to asylum”, from the moment an individual seeks protection in the EU territory until he or she eventually receives such protection.62 This would mean, on the one hand, to improve the conditions under which people seeking protection can effectively present their claims and receive an adequate response to their needs; on the other hand, it is important to support the stakeholders involved in the process of asylum in order to improve the overall system.63 The EU Commission utilized the Green Paper on the future Common European Asylum System both to outline the overriding issues at stake and to invite all the stakeholders and institutions involved in the asylum process to contribute with their opinions and views in order to allow the Commission to draw up a policy plan to be issued in the first quarter of 2008. Furthermore, this Green Paper highlighted the main points that should be revised in order to make the second stage of CEAS more efficient than the previous one. Among the most significant aspects listed in it, one can find an assessment of the Council Directive 2005/85/EC ("the Asylum Procedures Directive"), which is said to provide for a number of procedural standards rather than a “standard procedure”. Since the objective of the Hague Programme was to pursue a EU common procedure, further approximation was needed. Moreover, according to the Commission, it would be necessary to re-asses concepts such as of safe countries of origin, safe third countries, and safe European third countries. The Commission also proposed to include a single procedure for assessing for refugee status and for subsidiary protection.64 Secondly, Directive 2003/9/EC (the "Reception Conditions Directive") allowed a wide margin of discretion for Member States, which did not lead to a higher degree of harmonization among Member States. This is the reason why access of asylum seekers to the labour market was quite divergent according to the Member State an individual applied to. Moreover, those divergences resulted not only in the standards of reception conditions but also in access to health care.65 Thirdly, following the call of The Hague Programme for a uniformity of protection, the Commission discussed the possibility to limit
60 Green Paper on the future Common European Asylum System COM(2007) 301 final, p.2. 61 Ibid, p. 3.
