by Valsamis Mitsilegas (*)
The following lines summarize the issues I have raised at the Conference on “Managing Asylum Flows: Strengthening the Tools, Strengthening the System” organized by the Italian Presidency of the Council on 18-19 November 2014.
1. In order to evaluate the legal challenges surrounding the development of the Common European Asylum System (CEAS), one must bear in mind the paradox at the heart of the evolution of the Area of Freedom Security and Justice (AFSJ): while for a great part of EU Member States internal borders have been abolished, the administration of law and justice continues to take place at the national level, in accordance with national procedures and law. A Common European Asylum System has not (yet) led to a single European asylum status or procedure.
2. Mutual recognition has been one of the key tools which have been developed in EU law to manage the interaction of national legal systems in this context. Its operation in the AFSJ involves a system whereby decisions by judicial authorities issued in one Member State are recognised and executed speedily and with a minimum of formality and limited grounds for refusal by authorities in other Member States.
3. Mutual recognition has developed in this context in the fields of civil and criminal law. In criminal law, the system established by the European Arrest Warrant Framework Decision is emblematic of the application of the principle of mutual recognition in criminal matters. While the majority of the mutual recognition of the EU acquis in criminal law involves the mutual recognition (and thus extraterritorial application) of decisions aimed at law enforcement and at increasing the powers of the state, there are two Framework Decisions which lead to the mutual recognition of rights: the FD on the European Supervision Order (ESO- concerning the recognition of decisions on bail); and the FD on the European Protection Order (EPO- concerning the extraterritorial application of decisions granting rights to victims of crime such as restraining orders).
4.Notwithstanding the much higher degree of harmonisation in the field of asylum law compared to criminal law, mutual recognition has not been used extensively in the field of asylum. Mutual recognition has been used in a negative manner only in the Dublin system, whereby a decision by national authorities not to examine an asylum claim and leading to the transfer of an asylum seeker to another Member State is almost automatically recognised by the other Member State. The priority is here not to transfer rights, but to shield national systems from the presence and the examination of claims by asylum seekers. Recent case-law by European courts (MSS and Tarakhel in Luxembourg and NS in Luxembourg) has placed limits to the Dublin automaticity and the Dublin system under strain.
5. In the light of the above, the time has come to consider the application of the principle of mutual recognition to positive asylum decisions in EU law. The application of mutual recognition in this context provides five distinct and clear benefits:
a)It will create legal certainty as regards the status and rights of refugees throughout the EU in an AFSJ without internal frontiers
b)It is consistent with the Treaty aim of establishing a CEAS and a uniform status (Article 78 TFEU)
c) The necessary harmonisation which is necessary for the effective operation of mutual recognition exists at EU level, with the adoption of the second generation CEAS instruments post-Lisbon. There is a need to focus on the implementation of and compliance with these instruments across the EU.
d) Mutual recognition of positive asylum decisions is a corollary to developments examining possibilities for the pooling of reception conditions and join processing of asylum claims. Pooling of reception and procedure must be combined with the pooling of protection. Joint efforts in procedures and reception before the granting of refugee status will create joint ownership and mutual trust which will facilitate the subsequent recognition of positive asylum decisions across the EU.
e) Mutual recognition of positive asylum decisions focuses the discussion on solidarity specifically on the needs and rights of the refugee.
6. Point 5 has examined the question of why mutual recognition. This point will address the question of how.
There are three factors which must be considered when examining the precise conditions and modalities for the application of the principle of mutual recognition to positive asylum decisions:
Time: from when will mutual recognition kick in? One option is for mutual recognition to kick in from day one, namely from the date of the judicial decision granting refugee status. Another option may be for mutual recognition to kick in after 2 years of continuous residence in the state which has granted protection in line with the time limits established by the European Agreement of Transfer of Responsibility. A third option may be a hybrid model where movement to the second Member State happens immediately but equal treatment with long-term resident third-country nationals is granted from day one, whereas equal treatment with nationals of the second state is granted after 2 years.
Rights: For mutual recognition to be meaningful, the recognition of status should be accompanied by the recognition of rights. The protection and rights which the refugee is granted in the first Member State should follow her in the second Member State. There are different moments in time when this can happen (see under i).
Quotas: a possible way forward is to combine mutual recognition with the allocation of responsibility between Member States on the basis of quotas. However, this option faces two challenges: it may disregard the particular situation and wishes of refugees (eg in the context of family reunification); and it is hard to enforce in a Union without internal frontiers.
(*) Professor of European Criminal Law, Director of the Criminal Justice Centre / Head of the Department of Law, Queen Mary University of London.