ORIGINAL PUBLISHED ON OMNIA / ODYSSEUS PAGE
by Lilian Tsourdi, European University Institute
We continue our series of blogs aimed at providing an enriching background to the topics that will be discussed during our annual conference titled “Beyond ‘crisis’? The State of Immigration and Asylum Law and Policy in the EU” , which will take place in Brussels on 10 February 2017.
The ‘hotspot approach to migration management’ is one of the building blocks of EU’s response to what has been perceived as a crisis. Studies by the research unit of the European Parliament and ECRE have outlined its functioning and commented on the fundamental rights challenges it raises. Francesco Maiani reflected in this blog on its pertinence to enhancing solidarity and fair-sharing within the Common European Asylum System (CEAS), concluding that it undermines it instead. This contribution focuses on another aspect, notably the trends in the implementation of the asylum policy vividly portrayed through operations as part of the hotspot approach. I illustrate this through studying the evolving role of the European Asylum Support Office (EASO) in operational activities. Aspects of this contribution draw on a broader study soon to be published in the e-journal European Papers 1(3) under the title ‘Bottom-up Salvation? From Practical Cooperation towards Joint Implementation through the European Asylum Support Office’.
Hotspot: what is in a name?
The meaning of the terms ‘hotspot’ and ‘hotspot approach to migration management’ is not self-evident. In fact, there is no precise legal definition, nor a concerted legal framework regulating these concepts that have flooded the EU policy debate and practice. After being evoked in a feasibility study conducted at the Commission’s behest, the ‘hotspot approach’ emerged in the Commission’s EU Agenda on Migration. It basically concerns inter-agency collaboration, where deployed national experts under the coordination of a specific agency operationally assist national administrations. This approach is novel: although the respective agency regulations foresaw deployments, the element of interagency collaboration in what is in essence a single operational framework was never before so clearly articulated. The deployed experts are operational, conducting a variety of tasks (such as identification, registration, etc.) alongside national administrations. On the other hand, a ‘hotspot area’ is in essence an EU external border section facing high numbers of arrivals of third country nationals. In the policy discourse, the individual centres of identification and registration operating in such border areas are also referred to as ‘hotspots’.
The ‘hotspot approach’ finds its expression through the Migration Management Support Teams. This term was initially only included in policy documents. More recently, it has been defined in the new European Border and Coast Guard Regulation as:
a team of experts which provide technical and operational reinforcement to Member States at hotspot areas and which is composed of experts deployed from Member States by the European Border and Coast Guard Agency and by the European Asylum Support Office, and from the European Border and Coast Guard Agency, Europol or other relevant Union agencies.
The intensity of collaboration between agency-coordinated deployed experts and national administrations in hotspot areas, reflected below by the case of EASO, is such that one can speak of an emerging integrated European administration. This constitutes an important shift in the administration modes of the asylum policy.
EASO operational support: from expert consultants towards joint implementation?
In the initial policy design, practical cooperation between Member States was envisaged to support the implementation of the European asylum policy. It basically consisted in information exchange through administrative networks and ad-hoc projects. These collaborative efforts soon met their limits in boosting Member States’ capacity to implement the asylum policy. Their inadequacy to live up to the implementation challenges led to an institutionalisation push. Institutionalisation of practical co-operation efforts in the asylum policy came to fruition in 2010 through the adoption of the European Asylum Support Office (EASO) founding regulation.
Operational support activities constitute one of the three main areas of activity of EASO. They are pursued through the Asylum Support Teams (ASTs) which are predominantly made up of seconded national experts. Operational support activities were among the first tasks EASO was called upon to fulfil, with the Greek Government requesting the deployment of ASTs as early as February 2011. Operations gradually grew in number, as well as in scope. The agency adopted a flexible definition of what constitutes pressure and examined this in relative, rather than absolute terms, providing, for example, assistance in Luxembourg and Cyprus. This approach is correct since every Member State is called to implement its obligations mainly through its own financial and human resources. Deployments under ASTs during a first period were not operational in the same sense as the FRONTEX border guard teams which interacted with individual migrants at external borders. Most of the work consisted in expert advice provided to relevant ministry departments, or involved training and study visits of members of national administrations.
Gradually, the agency separated deployments from the situation of pressure altogether through the testing of joint processing pilots. These started out involving tasks that did not entail administrative discretion, such as initial registration, or archiving of data. They evolved beyond that, reportedly including, for example, the assessment of the merits of individual cases through deployed experts that conducted the asylum interview as in the case of the Netherlands pilot. However, they were small-scale and short term.
Operations in hotspots signal a further development. EASO deployees have begun to move away from expert consulting and undertake more hands-on tasks, such as providing information to arriving third country nationals, and assisting with the relocation process. This is exemplified by the case of Greece. A law adopted in April 2016 and amended in June 2016, transposing among other elements the recast Asylum Procedures Directive, establishes an accelerated border asylum procedure, addressing also the situation at hotspots. It states that in case of large number of arriving third country nationals or stateless persons who seek asylum at border areas, in transit zones, or in centres of reception and identification (which is the name given under Greek legislation to hotspots), an exceptional procedure applies. Its main elements are: a) asylum claims may be recorded by personnel of the Greek Police or the Greek Armed Forces; b) interviews with applicants for international protection may be conducted by personnel made available by EASO; c) extremely truncated deadlines for asylum processing, notably a deadline of one day for applicants to prepare for the first-instance interview, and a maximum of 3 days for deciding on appeals. This exceptional procedure may not be applied to individuals belonging to vulnerable groups, or to persons falling within the family provisions of the recast Dublin Regulation. The national law also contains provisions on finding an application inadmissible, which include protection in a safe third country and first country of asylum.
The provisions in national law on EASO involvement were amended in June 2016 to reflect the evolving nature of the collaboration between the Greek Asylum Service (the administrative body responsible for first-instance decision-making) and EASO-coordinated experts. Notably, the original April 2016 version of Law 4375/2016 stated that interpreters, as well as seconded personnel made available by EASO, may assist the Greek Asylum Service in recording the claim, the interview and any other process. The prior version of the Greek law was compatible with the limitations upon EASO according to its mandate, notably that it ‘shall have no powers in relation to the taking of decisions by Member States’ asylum authorities on individual applications for international protection’. That version of the law stated that the Greek Asylum Service can be assisted (μπορεί να επικουρείται) by EASO experts and interpreters. However, it did not reflect the administrative reality on the ground. Hence, the law was amended in June 2016 to state that deployed experts can conduct asylum interviews.
EASO-deployed experts at hotspots in Greece are independently conducting a part of the asylum process that entails discretion. They conduct the asylum admissibility interviews on behalf of the Greek Asylum Service, at least in the majority of cases, then submit their findings, on the basis of which the Service issues the final admissibility decision. Inherent parts of this process are assessing the credibility of the applicants, detecting vulnerability, and making a finding on the safety of third countries; all of these entail elements of discretion. The administrative reality is that this moves beyond assisted processing, to the realm of common processing. In terms of EU administrative law then, there is already an emergence of a variant of procedures that could be understood as de facto composite, or mixed, administrative procedures. These operations at hotspots arguably give ‘powers in relation to the taking of decisions on individual applications’, in the very least indirect powers. In this sense, they exceed the legal limits under the EASO Regulation.
Nevertheless, this administrative reality does not exceed the legal limitations placed by EU primary law, i.e. Article 78(2)(e) TFEU which foresees that ‘a Member State’ is to be responsible for the examination of an application. The deployed experts are only formulating an opinion, which is not binding on the Greek Asylum Service according to law. It is the Greek Asylum Service that formally adopts the admissibility decision, and it has the power to adopt a decision that goes against the proposal of the deployed experts.
This operational involvement of the EU also poses subsequent procedural questions. Notably, what rights do applicants enjoy during this interview with deployed experts, which is a crucial part of the asylum procedure? Normally, this process being a part of the asylum procedure, applicants should enjoy the full array of rights foreseen by the recast Asylum Procedures Directive and the Greek national law no matter who is conducting the interview; the fact that the EU level is operational should not lead to a diminution of procedural rights. However, on the ground there is uncertainty as to the procedural rights available, as illustrated for example by the contribution of Catharina Ziebritzki in this blog.
The rise of a ‘European Union Agency for Asylum’: ingraining common processing?
The Commission proposal on a European Union Agency on Asylum confirms these integrative trends. Overall, it enhances the agency’s mandate and resources. The first article of the new Regulation sets the ambitious tone of the proposal:
[t]he European Union Agency for Asylum (the Agency) shall ensure the efficient and uniform application of Union asylum law in Member States. It shall facilitate the implementation and improve the functioning of the Common European Asylum System (CEAS), and it shall be responsible for enabling convergence in the assessment of applications for international protection across the Union.
These elements go far beyond support or administrative cooperation. Rather, it seems that the Agency will be the vessel through which the implementation challenges of the asylum policy will be overcome. The agency’s functions would evolve to include processes that include directly steering implementation, as well as a monitoring function. In addition, elements of not only assisted, but also common processing would be ingrained in the mandate. The proposal decouples operational support from situations of disproportionate pressure, envisaging that operational support would be available in a broader context, as long as it remains limited in time.
The envisaged measures as part of operational support are variegated. They include preparatory acts of the asylum procedure that do not entail administrative discretion, such as assistance with the identification and registration of third country nationals, or assistance with the provision of information on the international protection procedure. However, a subsequent provision [Article 19(h)] referring to Operational plans includes the following reference:
regarding assistance with applications for international protection, including as regards the examination of such applications, specific information on the tasks that the asylum support teams or the experts from the asylum intervention pool may perform as well as reference to applicable national and Union law.
Already there is a hint that assistance may involve the examination of applications, or some part of it. Things are clear where it concerns the migration management teams deployed at hotspots. Among their tasks the following is stated: ‘the registration of applications for international protection and, where requested by Member States, the examination of such applications’. This formulation leaves little doubt that what is contemplated here is the examination of the application itself, rather than assistance, or facilitation of examination.
This provision on the hotspot related deployments should be read together with Recital 46 of the proposed Regulation which states: ‘[t]he competence to take decisions by Member States’ asylum authorities on individual applications for international protection remains with Member States’. Once again therefore de jure the proposed Regulation seems not to raise issues; even if deployed experts have examined an application, it will, at the very least, be rubberstamped by ‘a’ national authority. The European Parliament in its draft first reading position released in December 2016 insisted through its amendments that ‘this does not preclude, however, the joint processing of applications for individual protection by a Member State and the Agency’.
The institutionalisation of practical cooperation through the establishment of EU agencies in the Home Affairs area was a first decisive step into intensifying the EU-coordinated involvement in implementation, a stage initially designed to be predominantly operationalised by Member States, through their own resources. The working methods of agencies led to greater integration between the EU level and national administrations. For example, EASO, possessing but a small financial envelope and limited human resources, had recourse to Member States’ experts in order to fulfil its mandate. Several EASO outputs are jointly produced with Member States experts, such as COI reports and training modules. Administrative integration is more visible in EASO operations through the asylum support teams which are made up predominantly of seconded national experts. The first such operations were launched shortly after the agency’s establishment, and then gradually grew in number and scope. Most of the work consisted in expert advice provided to relevant ministry departments, or involved training and study visits of members of national administrations.
The next push came through the ‘refugee crisis’ and the roll-out of the hotspot approach with EASO deployees becoming more ‘operational’, alongside providing expert advice. As pressures increased, forms of common rather than assisted processing emerged in Greece, with deployed experts undertaking admissibility interviews and submitting opinions that, despite being advisory and non-binding on national authorities, entailed administrative discretion. This new role is ingrained in the May 2016 Commission proposal that envisages an agency with a boosted mandate unsettling the status quo. It potentially tasks deployments with the ‘examination of claims’, while repeating that the final decision remains the competence of Member States.
Developments point to the emergence of an increasingly integrated administration in the field of asylum. This is neither inherently positive, nor inherently negative. However, it brings with it novel challenges of both a constitutional and practical nature. While the first concern the division of powers between the EU and national levels, the latter concern effectively upholding applicants’ fundamental and procedural rights. Broadening agencies’ powers in the Home Affairs area, and the nascent forms of joint implementation, will have to be coupled with a rethink in EU administrative law and the establishment of effective guarantees. Cognizant of that fact, the European Parliament has proposed in its draft position on the European Union Agency on Asylum the establishment of a Fundamental Rights Officer; a Fundamental Rights Strategy; an individual complaints mechanism; and a robust role for the agency’s Consultative Forum in that setting. These proposals recognise the increasingly operational role this agency has to play, and reflect similar developments regarding the EU Border and Coast Guard. They form necessary, but still insufficient, measures that this evolving implementation set-up calls for. The dedicated workshop in the Odysseus Network Annual Policy Conference on the 10th February 2016 will present a forum to critically assess and further debate on these developments.