The Common European Asylum System: still a long way to go.

In 2008, EU Justice Commissioner Jacques Barrot stated that the “27-nation bloc should provide “higher standards of protection” and “a more equal level playing field” with respect to asylum procedures. This high level reinforcement of the need for harmonisation has occurred throughout the years at the highest political levels. In fact, it was the EU Heads of State and Government who called for the establishment of a Common European Asylum System (CEAS) at the Tampere Summit in 1999.

Since then, there has been steady progress through Tampere and the Hague programme (2004), which have in turn been complimented by initiatives on practical cooperation and solidarity as well as the external dimension of CEAS. More recently, the Stockholm Programme (2009) has provided another opportunity for Member States to yet again declare their commitment to CEAS by 2012.

CEAS will include two crucial elements. Firstly, by joining the system, Member States will accept a higher standard of harmonisation across the EU with respect to the adherence and proper application of the human right to seek asylum. In order to realise this, amendments are needed to three key EU asylum directives, namely the directive dealing with reception conditions, the directive which deals with asylum procedures and finally amendments would be needed to the directive dealing with “standards for qualification as refugees or persons needing international protection”. 

Secondly, through CEAS, Members States will also ensure that certain procedures are consistently implemented which will have the aim of eliminating the chances of abuse of the system, no matter where the request for asylum is submitted in the European Union. This can be achieved, for example, through the recently established Common Asylum Support Office. As stated by the Swedish Minister for Migration, Tobias Billström, the Support Office could “contribute to the harmonization process” but also “facilitate the work of the national authorities” and “play a vital role in enhancing capacity building in both the short and the long run”.

The overall attitude and political commitments made are positive. The most recent results of this positive attitude would be the entry into force of the Lisbon Treaty and the adoption of the Stockholm Programme by the European Council in December 2009, which established the political priorities in the area of freedom security and justice for the period 2010 to 2014.

The Lisbon Treaty provides a mandate for the European Union to have a fully fledged policy in this domain by establishing a common European policy on asylum, which is to go further than the current cooperation between Member States. Furthermore, the Treaty also establishes subsidiary protection and temporary protection when needed (and when the conditions for granting asylum are not met), as well as offering appropriate status to any third country national not requiring international protection. These indications in the Stockholm Programme foresee a better quality of the asylum decision-making process across the Member States in order to close the protection gap in Europe.

However, to adopt these measures a qualified majority of the Member States is needed and the continued reluctance of some Member States cannot be ignored, notably of the states concerned about the economic impact of these reforms.

These concerns have to be taken into account and policy solutions found in order to ensure that the integrity of CEAS is not jeopardised, such as the potential situation of various Member States continuing, in practice, to implement different rules to asylum seekers though a common standard has been agreed upon.

One, albeit pragmatic strategy, could be to accept the inevitable result that each best practice will not be followed and therefore elevate some principles and make them sacred. Some of these principles could include the Commission’s proposals on detention. However, it is first necessary to establish that it is to be principles that are elevated and not a detailed list, as is currently trying to be agreed upon and has reached deadlock.

In order to complete the ongoing construction of the Common European Asylum System, six legislative proposals have to be negotiated with the European Parliament.

These proposals are:

the Long Term Residents Directive (rapporteur Claude Moraes),

the Dublin II Regulation (rapporteur Cecilia Wikström),

the Eurodac Regulation (rapporteur Monica Macovei),

the Reception Conditions (rapporteur Antonio Masip Hidalgo),

the Qualification Directive (rapporteur Jean Lambert),

– and finally the Asylum Procedures Directive (rapporteur Sylvie Guillaume)

Focusing on the Long Term Residents Directive, in June 2007, the Commission proposed the extension of the scope of the Directive to include beneficiaries of international protection. At the time, there was no unanimity in Council; however, with the entry into force of the Treaty of Lisbon, unanimity is no longer required for proposals dealing with legal migration and it could therefore be adopted by the Council at qualified majority.

With regards to Dublin II and the Eurodac Regulations, recast proposals were presented in December 2008 with the aim of increasing efficiency of asylum cases and offering better guarantees and legal protection to asylum seekers. In May 2009, the European Parliament proposed various amendments to these proposals in ‘first reading’. Discussions are now ongoing in Council, and though they advanced considerably, there are still serious issues that have to be resolved before the proposals can come back to the Parliament for a second reading and ultimately the adoption of the final text. The blocking issues are the definition of family members, provisions on detention and finally the necessity of a mechanism for the temporary suspension of transfers of asylum seekers to the first country of entry in the EU territory. The Belgian Council Presidency believes that the inclusion of a solidarity mechanism in the Dublin Regulation for Member States that are committed to fully implementing the EU asylum acquis, will be needed.

Whilst for Eurodac (the system collecting asylum seekers fingerprints), the blocking issue is that of the access to this data by law enforcement services. As Eurodac is not a security related measure, such a move will modify the original purpose and have an impact on data protection. This is an issue that is incredibly controversial as the European Parliament could consider it a dangerous precedent which provides law enforcement services access to systems that have been conceived for other purposes.

In order to resolve the various issues that are present in all proposals and to enable the conclusion of the negotiations, the institutions have taken various practical steps.

Recently for example, the LIBE Committee of the European Parliament set up an internal working group on asylum made up of the rapporteurs and shadow rapporteurs involved in the asylum dossiers to ensure a common strategy to treat the asylum “package”.

Furthermore, the Council Presidency intends to preserve a politically coherent approach. In fact at the last JHA informal Council meeting on 15 and 16 July this year, the Belgian Council Presidency showed a real awareness of the urgent need to advance rapidly on the legislative proposals in order for CEAS to be established by 2012, a deadline set by the Stockholm Programme (though it is becoming increasingly evident that such a deadline looks too ambitious). Taking into consideration the current political majorities between Member States to date, the Presidency will firstly focus on some pieces of the “package” such as the Long-Term Directive, Dublin II, Eurodac and the Qualification Directive as these proposals that can be viably achieved in the short-term.

Regrettably, the “reception conditions” and “asylum procedures” draft directives are seen as long-term issues with no solution foreseen in the short-term. This is due to the challenge of striking a balance between high protection standards on the one hand and the “efficiency” of the asylum system on the other; no small issue to contend with and certainly not one to which a solution is foreseen in the short-term.

Regardless of the timetable however, progress needs to be made in all proposals.

An opportunity to advance on the proposals will present itself at the Ministerial Asylum Conference on “Quality and Efficiency in the Asylum Process on 13-14 September”. Here contributions will be made by a large range of stakeholders, including the EU institutions and the Member States which should work together in order to resolve the issues that are blocking many of the proposals and be consistent with the engagements taken with the Lisbon Treaty and the Stockholm Programme.

The overall aim of a Common European Asylum System needs to be achieved urgently. Asylum seekers should be treated in an equal and fair way across all the EU Member States and not risk losing their rights depending on which Member State they so happen to land in. Furthermore, EU Member States need to work together to ensure that the system itself is not open to abuse.

Needless to say, the effects of harmonisation of this kind do not just stop at the issue of asylum, rather, this level of harmonisation feeds into the bigger issue of international relations and the image of the EU. If the European Union wishes to retain its status as the “protector” of human rights, as stated by Mr. António Guterres, the UN Commissioner for Refugees, then CEAS is an opportunity to strengthen the realisation of human rights, achieve a truly common European standard in the framework of the Geneva Convention and it can also contribute to the EU as a whole becoming a more harmonised and credible international player, rather than the clumsy one that it currently is.

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