The Common European Asylum System: Its History, Content, and Shortcomings

February, 2016

Silvia Raithel, Vol. 37 Associate Editor

Negotiations towards the Common European Asylum System (“CEAS”) began in 1999 in the city of Tampere, Finland.[1] EU Member States wanted a unified asylum system, based on binding legislation, in order to address several key problems.[2] One problem the CEAS sought to address was asylum shopping.[3] This is a practice whereby asylum seekers whose applications for asylum in one EU Member State are denied apply for asylum in another EU Member States.[4] A second problem the CEAS sought to address was disparate asylum outcomes in different EU Member States.[5] This led asylum seekers to gravitate towards EU Member States where their application was more likely to be approved.[6] A third problem the CEAS sought to address was differing social benefits for asylum seekers in different EU Member States.[7] This led asylum seekers to file their petitions for asylum in the EU Member States that had the best social benefits for asylum seekers.[8] The adoption of the CEAS took place in two phases.[9] During the first phase, between 1999 and 2005, “several legislative measures [harmonizing] common minimum standards for asylum were adopted.”[10] These minimum standards included five key components: (1) the Asylum Procedures Directive,[11] (2) the Reception Conditions Directive,[12] (3) the Qualification Directive,[13] (4) the Dublin Regulation,[14] and (5) the Eurodac Regulation.[15] These minimum standards were later built upon to develop the CEAS.[16] Three pillars underpin the transition from these minimum standards to the CEAS: “bringing more [harmonization] to standards of protection by further aligning the EU States’ asylum legislation; effective and well-supported practical cooperation; [and] increased solidarity and sense of responsibility among EU States, and between the EU and non-EU countries.”[17] The CEAS is essentially comprised of stronger, more comprehensive and precise versions of the original minimum standards. The CEAS includes: (1) the revised Asylum Procedures Directive,[18] (2) the revised Reception Conditions Directive,[19] (3) the revised Qualification Directive,[20] (4) the revised Dublin Regulation,[21] and (5) the revised Eurodac Regulation.[22]

The revised Asylum Procedures Directive aims at fairer, quicker and better quality asylum decisions; asylum seekers with special needs will receive the necessary support to explain their claim and in particular there will be greater protection of unaccompanied minors and victims of torture;

the revised Reception Conditions Directive ensures that there are humane material reception conditions (such as housing) for asylum seekers across the EU and that the fundamental rights of the concerned persons are fully respected; it also ensures that detention is only applied as a measure of last resort;

the revised Qualification Directive clarifies the grounds for granting international protection and therefore will make asylum decisions more robust; it will also improve the access to rights and integration measures for beneficiaries of international protection;

the revised Dublin Regulation enhances the protection of asylum seekers during the process of establishing the state responsible for examining the application and clarifies the rules governing the relations between states; it creates a system to detect early problems in national asylum or reception systems and address their root causes before they develop into fully fledged crises;

[and] the revised Eurodac Regulation will allow law enforcement access to the EU database of the fingerprints of asylum seekers under strictly limited circumstances in order to prevent, detect or investigate the most serious crimes, such as murder and terrorism.[23]

While the unification of the asylum system in the EU has come a long way since 1999, the CEAS (which has only been fully applicable since July 2015) is already experiencing massive problems. One major issue that has been identified is with the revised Dublin Regulation, which – as a general rule – requires the country where a refugee initially enters the EU to process that refugee’s asylum claim.[24] The problem is that asylum seekers may not wish to be processed in the EU country where they arrive, and the EU country where they arrive may not wish to process them. Therefore, many asylum seekers are simply not registered in the EU country where they arrive.[25] This shortcoming has been aggravated by the refugee crisis that stunned Europe in 2015. Approximately 1.1 million refugees arrived in Europe in 2015,[26] many of them fleeing from violence in Syria, Afghanistan, and Eritrea.[27] The majority of these migrants entered Europe through either Greece or Italy: roughly 850 thousand entered through Greece and roughly 200 thousand entered through Italy.[28] For the time being the CEAS is in serious trouble. In fact, the revised Dublin Regulation has been openly suspended. The Dublin Regulation “was in effect finished off last August when the German chancellor, Angela Merkel, said all Syrian refugees would be eligible to seek shelter in Germany.”[29] “EU leaders are due in March to agree a sweeping overhaul of Europe’s migration policy.”[30] It will interesting to see what version, if any, of the CEAS emerges then.

[1] History of the CEAS, European Council on Refuges and Exiles, http://www.ecre.org/component/content/article/36-introduction/194-history-of-ceas.html (last visited Feb. 1, 2016). [2] Id. [3] Id. [4] Id. [5] Id. [6] Id. [7] Id. [8] Id. [9] Common European Asylum System, European Commission: Migration and Home Affairs, http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/asylum/index_en.htm (last updated June 23, 2015) [hereinafter European Commission]. [10] Id. [11] Council Directive 2005/85/EC of 1 December 2005 on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status, 2005 O.J. (L 326/13). [12] Council Directive 2003/9/EC of 27 January 2003 Laying Down Minimum Standards for the Reception of Asylum Seekers, 2003 O.J. (L 31/18). [13] Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third-Country Nationals or Stateless Persons as Refugees or as Persons who Otherwise Need International Protection and the Content of the Protection Granted, 2004 O.J. (L 304/12). [14] Council Regulation (EC) No 343/2003 of 18 February 2003 Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Asylum Application Lodged in One of the Member States by a Third-Country National, 2003 O.J. (L 50/1). [15] Council Regulation (EC) No 2725/2000 of 11 December 2000 Concerning the Establishment of ‘Eurodac’ for the Comparison of Fingerprints for the Effective Application of the Dublin Convention, 2000 O.J. (L 316). [16] European Commission, supra note 9. [17] Id. [18] Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on Common Procedures for Granting and Withdrawing International Protection (recast)(applicable from 21 July 2015), 2013 O.J. (L 180/60). [19]Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 Laying Down Standards for the Reception of Applicants for International Protection (recast) (applicable from 21 July 2015), 2013 O.J. (L 180/96). [20] Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 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 (recast)(applicable from 21 December 2013), 2011 O.J. (L 337/9). [21] Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 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 (recast) (applicable from 1 January 2014), 2013 O.J. (L 180/31). [22] Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 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 and on Requests for the Comparison with Eurodac Data by Member States’ Law Enforcement Authorities and Europol for Law Enforcement Purposes, and Amending Regulation (EU) No 1077/2011 Establishing a European Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (recast) (applicable from 20 July 2015), 2013 O.J. (L 180/1). [23] A Common European Asylum System, European Commission: Home Affairs, http://ec.europa.eu/dgs/home-affairs/e-library/docs/ceas-fact-sheets/ceas_factsheet_en.pdf (last visited Feb. 1, 2016). [24] Duncan Robinson, How the EU Plans to Overhaul ‘Dublin Regulation’ on Asylum Claims, Financial Times (Jan. 20, 2016, 9:51 AM), http://www.ft.com/cms/s/2/d08dc262-bed1-11e5-9fdb-87b8d15baec2.html#axzz3zdNtCTJn. [25] Id. [26] Jennifer Rankin, Plan to Scrape Asylum Rule for Refugees Raises Stakes in UK’s EU Referendum, The Guardian (Jan. 20, 2016), http://www.theguardian.com/politics/2016/jan/20/plan-to-change-rule-for-refugees-raises-stakes-in-uk-eu-referendum. [27] Migrant Crisis: Migration to Europe Explained in Graphics, BBC (Jan. 28, 2016), http://www.bbc.com/news/world-europe-34131911. [28] Robinson, supra note 24. [29] Rankin, supra note 26. [30] Id.