Wednesday, 23 November 2016

The Common European Asylum System and the Plight of International Protection Seekers – Ensuring Protection of Human Rights in Times of Crisis and Emergency

Political debates and popular discussions of mass migration and refugee flows are increasingly dominated by a language of ‘crisis’ and the measures adopted at European Union (EU) level are conceived with an emergency-driven mind-set. This has led to the rise of unorthodox institutional and policy developments as a pragmatic rather than a legal response to address the formidable challenges posed by the mass movement of refugees that is witnessed in Europe. [1] Schengen once seemed like a hermetic system: sealed, internally fluid and unbreakable. [2] But that was before the conflict in Syria sent a veritable flood of displaced people in search of a safe harbour into Europe. [3]

In September 2015 the image of the lifeless body of the Syrian three-year-old boy, Aylan Kurdi, washed ashore on a Turkish beach galvanized public opinion into adopting a more humane approach towards the plight of refugees and prompted the EU to take a more decisive action. Following his death, and other equally shocking tragic events, the Commission announced an emergency relocation scheme for 120,000 international protection seekers from Greece, Hungary and Italy [4] using a mandatory distribution key [5] as well as a permanent crisis relocation mechanism for all Member States on the basis of Articles 78(3) and 80 TFEU, in actual fact a compulsory refugee quota settlement system combined with a binding solidarity mechanism for all Member States. Hungary and Slovakia have brought a legal action against the EU’s emergency response mechanism before the Court of Justice of the EU thus illustrating the political divide between Member States, particularly between Eastern and Western European countries. [6]
The inability of national public authorities and EU Institutions to manage effectively the unprecedented massive influx of refugees to Europe are leading some to argue that what we are witnessing here is not merely an identity crisis of the EU but rather an existential one that is threatening the EU’s own raison d'être. [7]
From the persistent securitization of measures focused on migration management and a politics of numbers to the setting up of new border walls across Europe (with a concomitant new border infrastructure that substantially expands enforcement, its militarization and reliance on the use of detention), policies and measures on asylum and migration have exposed the exclusionary logic at the heart of the Schengen system. We are seeing an extension of extraterritorial exclusion, political distancing, and arguably the deferral of moral responsibility with asylum-seekers at the edges of the EU being funnelled to more dangerous and remote locations. [8] This raises profound questions over the appropriateness, effectiveness and desirability from a human rights perspective of these emergency responses. The logic of emergency and pragmatism has encouraged reactionary measures that focus on narrow geographies of immediate concern allowing for policies to trump human rights. It has had pernicious consequences on displaced people’s human rights not only by allowing the concurrence of refugee deterrence and inadequate or poor reception conditions but also by justifying if not legitimizing what Kalpouzos and Mann have forcefully defined as ‘banal crimes against humanity’. [9] Indeed, denying people their human rights is challenging their very humanity and it goes against the core of their human dignity, namely that every human possesses an innate worth, just by being human which needs to be respected and protected.
Against this background, the Commission has presented in the course of 2016 a package of reforms of the Common European Asylum System (CEAS)[10] to ensure a more efficient, fair and humane EU asylum policy, which is attempting to go beyond an emergency driven mind-set. [11] The reform envisages, among others: more harmonized rules on asylum procedures, which should be simplified and shorter; greater convergence of recognition rates; the use by the Member States of standards and indicators on reception conditions developed by the European Asylum Support Office (EASO); the drawing up of contingency plans by the Member States to ensure reception capacity; common reinforced guarantees for asylum seekers with special needs and the allocation of a guardian to unaccompanied minors. The reform of the Dublin system is particularly important given its centrality in the CEAS. It envisages a corrective allocation mechanism to guarantee a better share of responsibilities so that when an overwhelming number of asylum requests are filed in just one Member State, the number of asylum seekers exceeding the absorption capacity of that country will be distributed among all Member States that are not confronted with excessive pressure. The ‘fairness mechanism’ based on the solidarity principle will be triggered automatically where a Member State has had a disproportionate number of asylum applications. To this end the EASO is to become a fully-fledged EU agency for asylum to operate the reference key in order to apply the fairness mechanism.[12] The proposed reform has been subject to criticism [13] insofar as it does not provide for a major change to what is clearly a fundamentally flawed system for the allocation of responsibility of asylum applications across the EU. With some exceptions such as the broader scope of the definition of family members, asylum seekers would be exposed to stricter and unfair rules. At the same time, the proposed regulation maintains if not worsens the inequality in the distribution of responsibility between Member States: countries of first entry would be required to conduct admissibility and merit-related assessments before applying the new regulation. Moreover, the provisions concerning the end of a Member State’s responsibility after a certain period of time has elapsed have been removed under the proposed reform with again negative consequences for countries of first entry and thus Southern-Mediterranean countries.
While the Commission is attempting to strengthen the legal framework of the CEAS the changes made do not seem to go far enough in safeguarding the fundamental rights of international protection-seekers in times of crisis and emergency, as the proposed reform does not constitute an overhaul of the current system in place. The reality on the ground indicates that the sheer size of migratory flows is such that the measures to be adopted to grapple with the complex and constantly evolving situation of the current refugee crisis necessarily need to include a combination of legal and policy tools and in this context of both conventional and less orthodox instruments. This state of affairs confirms first of all that a joint and collective effort is a condition sine qua non at all levels of decision-making and implementation. It also illustrates the fact that Member States retain a key role in the implementation of asylum law and policy but still require the assistance of a plurality of non-state actors. Hence, the purported failure of CEAS is not a failure of the EU and its ideals alone but rather a failure of the Member States and its people who are less and less incline to embrace solidarity towards international protection seekers.

Dr Samantha Velluti, Reader in Law, University of Sussex 

[1] By way of example, no use has been made to date of the Temporary Protection Directive, see Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, OJ 2001, L212/12. This Directive was adopted precisely for establishing a legal framework for managing an unexpected mass influx of individuals; for further discussion, see Advanced Training Program on Humanitarian Action (ATHA), ‘Why is the Temporary Protection Directive Missing from the European Refugee Crisis Debate?’, 7 October 2015, available at: <>, accessed on 20 October 2016.
[2] Michel Herzfeld, ‘Welcome to Greece (but Not to Europe)’, available at: <>, accessed 19 October 2016.
[3] Ibid.
[4] This came in addition to the Commission’s proposal to relocate 40,000 people in clear need of international protection from Italy and Greece, thus bringing the total number to be relocated to 160,000; see Council Decision (EU) 2015/1523 of 14 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece, OJ 2015, L239/146.
[5] European Commission, ‘Refugee Crisis: European Commission takes decisive action - Questions and answers’, Press Release of 9 September 2015, available at: <>, accessed 19 October 2016; this announcement was followed by the adoption by the Council of Ministers of an EU Decision, see Council Decision (EU) 2015/1601 of 24 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece, OJ 2015, L 248/80. Hungary decided not to be part of the mechanism. The EU Decision was adopted within the Council with Qualified Majority Voting (QMV), overruling Hungary, the Czech Republic, Slovakia and Romania, and with Finland abstaining. On 2 October 2016 Hungary went on to hold a referendum on the EU mandatory relocation scheme, which would have required Hungary to receive 1294 refugees. The Hungarian government was unable to reach the necessary quorum of voters rendering the result null and void. Nevertheless, 98% of participants sided with the Prime Minister Viktor Orbán to reject the admission of refugees in Hungary.
[6] Case C-643/15, Slovak Republic v Council of the European Union, of 2 December 2015, pending; Case C-647/15, Hungary v Council of the European Union, of 3 December 2015, pending. 
[7] Alex Barker, Andrew Byrne and Jeevan Vasagar, ‘EU refugee crisis: end of an ideal’, Financial Times, 4 September 2015.
[8] The EU-Turkey Joint Action Plan of 29 November 2015 (reinforced with the EU-Turkey Statement of 7 March 2016) is a case in point. The Action Plan aims at: a) addressing the root causes leading to the massive influx of Syrians, (b) supporting Syrians under temporary protection and their host communities in Turkey (Part I) and (c) strengthening cooperation to prevent irregular migration flows to the EU (Part II). The most salient parts of the agreement are:
1) All new irregular migrants crossing from Turkey to the Greek islands as of 20 March 2016 will be returned to Turkey;
2) For every Syrian being returned to Turkey from the Greek islands, another Syrian will be resettled to the EU;
3) Turkey will take any necessary measures to prevent new sea or land routes for irregular migration opening from Turkey to the EU;
4) Once irregular crossings between Turkey and the EU are ending or have been substantially reduced, a ‘Voluntary Humanitarian Admission Scheme’ will be activated;
5) The EU will, in close cooperation with Turkey, further speed up the disbursement of the initially allocated €3 billion under the ‘Facility for Refugees in Turkey’. Once these resources are about to be used in full, the EU will mobilise additional funding for the Facility up to an additional €3 billion to the end of 2018;
6) The EU and Turkey will work to improve humanitarian conditions inside Syria.
The agreement has been condemned, among others, by the United Nations Refugee Agency (UNHCR), Human Rights Watch (HRW) and the European Council on Refugees and Exiles (ECRE) for violating the 1951 Geneva Refugee Convention; for academic commentary, see Henri Labayle and Philippe de Bruycker, ‘The EU-Turkey Agreement on Migration and Asylum: False Pretences or a Fool’s Bargain?’, 1 April 2016, EU Immigration and Asylum Law and Policy, available at: < >, accessed on 21 October 2016.
[9] Ioannis Kalpouzos and Itamar Mann, ‘Banal Crimes against humanity: the case of asylum seekers in Greece’ (2015) Melbourne Journal of International Law 16(1): 1-28.
[10] European Commission, Communication from the Commission to the European Parliament and the Council, Towards a reform of the Common European Asylum System and enhancing legal avenues to Europe, COM(2016) 197 final.
[11] The package contains proposals for the ‘Dublin IV Regulation’, see European Commission, Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), COM(2016) 270 final; Proposal for a Regulation of the European Parliament and of the Council on the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of [Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person] , for identifying an illegally staying third-country national or stateless person and on requests for the comparison with Eurodac data by Member States' law enforcement authorities and Europol for law enforcement purposes (recast), COM(2016) 272 final; Proposal for a Directive of the European Parliament and of the Council laying down standards for the reception of applicants for international protection (recast), COM(2016) 465 final; Proposal for a Regulation of the European Parliament and of the Council on on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection and for the content of the protection granted and amending Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, COM(2016) 466 final; Proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU, COM(2016) 467 final; Proposal for a Regulation of the European Parliament and of the Council establishing a Union Resettlement Framework and amending Regulation (EU) No 516/2014 of the European Parliament and the Council, COM(2016) 468 final.
[12] The Agency will also be tasked with ensuring greater convergence in the assessment of applications for international protection across the Union, strengthening the practical cooperation and information exchange between Member States and promoting Union law and operational standards regarding asylum procedures, reception conditions and protection needs; see European Commission Proposal for a Regulation of the European Parliament and of the Council on the European Union Agency for Asylum and repealing Regulation (EU) No 439/2010 COM(2016) 271 final. 

[13] ECRE Comments on the Commission Proposal for a Dublin IV Regulation COM(2016) 270, October 2016, available at: <>, accessed 22 October 2016; for academic commentary, see Marcello Di Filippo, ‘Dublin “reloaded” or time for ambitious pragmatism?’, 12 May 2016, EU Immigration and Asylum Law and Policy, available at: <>, accessed on 23 October 2016.

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