Reforming the Common European Asylum System : The New European Refugee Law [1 ed.] 9789004308664, 9789004308657

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Reforming the Common European Asylum System

Immigration and Asylum Law and Policy in Europe Edited by Jan Niessen Elspeth Guild

VOLUME 39

The titles published in this series are listed at brill.com/ialp

Reforming the Common European Asylum System The New European Refugee Law Edited by

Vincent Chetail Philippe De Bruycker Francesco Maiani

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Chetail, Vincent, editor. | Bruycker, Philippe de, editor. | Maiani, Francesco, editor. | Academic Network for Legal Studies on Immigration and Asylum Law in Europe. Title: Reforming the common European asylum system : the new European refugee law / Edited by Vincent Chetail, Philippe De Bruycker, Francesco Maiani. Description: Boston : Brill Nijhoff, 2016. | Series: Immigration and asylum law and policy in europe ; volume 39 | “This book is the outcome of the 7th Congress of the Academic Network for Legal Studies on Immigration and Asylum in Europe held at Brussels on April 2014” -- galley. | Includes bibliographical references and index. Identifiers: LCCN 2015045175 (print) | LCCN 2015045341 (ebook) | ISBN 9789004308657 (hardback : alk. paper) | ISBN 9789004308664 (E-book) Subjects: LCSH: Asylum, Right of--European Union countries--Congresses. | Refugees--Legal status, laws, etc.--European Union countries--Congresses. Classification: LCC KJE5202.A8 R44 2016 (print) | LCC KJE5202.A8 (ebook) | DDC 342.2408/3--dc23 LC record available at http://lccn.loc.gov/2015045175

Want or need Open Access? Brill Open offers you the choice to make your research freely accessible online in exchange for a publication charge. Review your various options on brill.com/brill-open. Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 1568-2749 isbn 978-90-04-30865-7 (hardback) isbn 978-90-04-30866-4 (e-book) Copyright 2016 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents PART 1 Introduction 1 The Common European Asylum System: Bric-à-brac or System? 3 Vincent Chetail 2 The Complex Relationship of Asylum and Border Controls in the European Union 39 Elspeth Guild 3 Negotiating the Second Generation of the Common European Asylum System Instruments: A Chronicle 55 Patricia Van de Peer 4 A Common European Asylum System under Construction: Remaining Gaps, Challenges and Next Steps 74 Kris Pollet

PART 2 The Dublin Regulation 5 The Dublin iii Regulation: A New Legal Framework for a More Humane System? 101 Francesco Maiani 6 Family Unity and Family Reunification in the Dublin System: Still Utopia or Already Reality? 143 Ulrike Brandl 7 The Dublin System, Solidarity and Individual Rights 159 Madeline Garlick

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Contents

PART 3 The Qualification Directive 8 Piecemeal Engineering: The Recast of the Rules on Qualification for International Protection 197 Hemme Battjes 9 Refugee Status and Subsidiary Protection: Towards a Uniform Content of International Protection? 240 Céline Bauloz and Géraldine Ruiz

PART 4 The Reception Conditions Directive 10

e u Reception Conditions: A Dignified Standard of Living for Asylum Seekers? 271 Evangelia (Lilian) Tsourdi

11 Reception Conditions as Human Rights: Pan-European Standard or Systemic Deficiencies? 317 Jens Vedsted-Hansen 12 Vulnerable Persons as a New Sub-Group of Asylum Seekers? 353 Lyra Jakuleviciene

PART 5 The Asylum Procedures Directive 13 The Recast Asylum Procedures Directive 2013/32/eu: Caught between the Stereotypes of the Abusive Asylum-Seeker and the Vulnerable Refugee 377 Cathryn Costello and Emily Hancox 14 Legal Aid for Applicants for International Protection 446 Barbara Mikołajczyk

Contents

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PART 6 Conclusion 15 Building the Common European Asylum System beyond Legislative Harmonisation: Practical Cooperation, Solidarity and External Dimension 473 Philippe De Bruycker and Evangelia (Lilian) Tsourdi Index 539

PART 1 Introduction

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chapter 1

The Common European Asylum System: Bric-à-brac or System? Vincent Chetail* 1 Introduction The Common European Asylum System (ceas) is a relatively recent endeavour compared to other regional initiatives devoted to refugee protection. It only emerged in 1999 whereas Africa and Latin America adopted regional instruments several decades before with the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa1 and the 1984 Cartagena Declaration on Refugees,2 as supplemented by several other instruments.3 This different timing might be explained by the profound unequal distribution of asylum-seekers and refugees among developed and developing states. According to the latest estimates of the United Nations High Commissioner for Refugees (unhcr), developing states host 86 per cent of the world’s refugees.4 Despite its modest contribution, the ceas is nonetheless much more ambitious than its regional counterparts. Its great objective is to establish a truly common system. This presupposes by definition a comprehensive scheme articulating the different components of refugee protection in a cogent manner. Such a system * Professor of International Law, Graduate Institute of International and Development Studies, Geneva; Director of the Global Migration Centre. 1 Convention Governing the Specific Aspects of Refugee Problems in Africa, 1001 unts 45, 10 September 1969 (entry into force 20 June 1974). 2 Cartagena Declaration on Refugees, oas Doc. OEA/Ser.L/II 66, Doc. 10, Rev. 1, 190–193, 22 November 1984. 3 See most notably the recognition of the right to asylum by the American Convention on Human Rights, oas Treaty Series No. 36, 1144 unts 123, 22 November 1969 (entry into force 18 July 1978), Article 22(7); the African Charter on Human and Peoples’ Rights, oau Doc. CAB/ LEG/67/3 rev. 5; 1520 unts 217, 27 June 1981 (entry into force 21 October 1986), Article 12(3); and the Arab Charter on Human Rights, reprinted in 12 International Human Rights Reports 893 (2005), 22 May 2004 (entry into force 15 March 2008), Article 28. 4 ‘At the end of 2013, developing regions hosted 10.1 million or 86 per cent of the world’s refugees, the highest value for the past 22 years. The Least Developed Countries alone provided asylum to 2.8 million refugees or 24 per cent of the global total’. See unhcr, War’s Human Cost: unchr Global Trends 2013, 20 June 2014, 17.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004308664_002

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is thus not limited to the refugee definition and the legal status of those so qualified under the United Nations Convention Relating to the Status of Refugees (the Geneva Convention).5 It also includes asylum procedures, the determination of the State responsible for examining asylum requests, as well as new forms of protection (labelled as subsidiary protection and temporary protection). However, this ambitious scheme of protection contrasts with its own driving force. While other regional instruments have been adopted for the purpose of detailing and supplementing the Geneva Convention, the ceas has been elaborated in a different context: from its inception, it has been conceived as a flanking measure of European Union (eu) integration to compensate for the abolition of internal borders. This is clearly reflected by Article 3(2) of the Treaty on European Union (TUE) according to which: The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime. The ambition of establishing a common asylum system is thus part and parcel of a broader design, which is intrinsically associated with the eu construction. Following such a stance, the abolition of internal borders has diverted attention to the external borders of the Union and the need for their accrued control where asylum and the fight against criminality have been put on equal footing. This background represents a unique feature of the eu policy on asylum and migration. It constitutes in turn a key characteristic for understanding the complex evolution of the ceas (Part 2), as well as its progresses and limits (Part 3) for establishing a truly common system. 2

The Origin and Evolution of the Common European Asylum System

The abolition of internal borders between eu Member States constitutes the primary driving force of the ceas. It has not only triggered its establishment

5 United Nations Convention Relating to the Status of Refugees, 189 unts 137, 28 July 1951 (entry into force 22 April 1954).

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(2.1), but has also exercised a decisive influence on the major developments it  has experienced during the first (2.2) and second phases (2.3) of its construction. The Origin of the Common European Asylum System: From Intergovernmental Cooperation to Common Policy (1985–1999) While the founding Treaty of Rome did not say anything about asylum and immigration, the need for harmonising domestic legislation in parallel with the abolition of internal border control within the European Community was acknowledged for the first time as early as 1974. The Paris Summit of European Heads of State endorsed the need for a ‘stage-by-stage harmonisation of legislation affecting aliens and for the abolition of passport control within the Community’.6 However, little was done to harmonise both asylum and immigration legislation until the abolition of intra-Member State borders became a reality. The adoption of the Schengen Agreement in 1985 and of the Single European Act in 1986 constituted a turning point with the objective of establishing ‘an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured’.7 While this ambitious objective was to be achieved by 31 December 1992, the transitional period witnessed an unprecedented effervescence surrounding asylum and laid down the foundations of a common policy in a field traditionally rooted in state sovereignty. One year before the adoption of the Single European Act, the White Paper of the European Commission devoted to the completion of the internal market warned that ‘the abolition of checks at internal frontiers will make it much easier for nationals of non-Community countries to move from [one] Member State to another’.8 It accordingly called for the adoption of directives to harmonise

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6 Communiqué, Paris Summit of the Heads of State or Government, 9–10 December 1974, para 10. The Tindemans Report on the European Union adopted the following year also insisted on the need to foster ‘the gradual disappearance of frontier controls on persons moving between member countries, as a corollary of passport union’ but it did not mention the harmonisation of asylum and migration legislation as possible flanking measures: L. Tindemans, European Union, Bulletin of the European Communities, Supplement 1/76, 29 December 1975, 27–28. 7 Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the Gradual Abolition of Checks at their Common Borders (Schengen Agreement), 30 ilm 68, 14 June 1985 (entry into force 1  September 1993); Article 8(a) of the Single European Act of 28 February 1986, oj L 169, 29 June 1987 (entry into force 1 July 1987). 8 Completing the Internal market. White Paper from the Commission to the European Council, COM(85) 310 Final, 14 June 1985, 15–16, para 55.

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domestic legislation on drugs, arms, asylum and immigration in order to compensate for the absence of border control within the European Community.9 In June 1989, the European Council adopted the Palma Document, which explicitly endorsed the need for a ‘common policy’ in the field of asylum.10 However, instead of adopting eu directives, Member States opted for a purely inter-governmental approach.11 Informal cooperation was concretised in 1990 with the adoption of two treaties aimed at anticipating the abolition of internal borders scheduled for the end of 1992: the Schengen Implementing Convention12 and the Dublin Convention,13 the latter mainly focusing on the determination of the State responsible for examining asylum applications.14 As a result of this inter-state mechanism, asylum-seekers have been specifically excluded from the eu area without internal frontiers.15 Since the entry into force of the Dublin Convention, asylum-seekers only have one chance to submit their claim within the whole eu territory. The State in charge of assessing their application is f­ urther determined on the basis of purely objective criteria agreed on by States, without regard to asylum-seekers’ wish or preferences. According to these c­ riteria, it is  usually the Member State with the greatest responsibility for the entry of 9 Ibid. 10 European Council, Presidency Conclusions, Madrid, 26 and 27 June 1989, sn 254/2/89, 6. According to the Palma Document, this common policy should initially focus on the five following components: ‘acceptance of identical international commitments with regard to asylum; determining the State responsible for examining the application for asylum; simplified or priority procedure for the examination of clearly unfounded requests; conditions governing the movement of the applicant between Member States; study of the need for a financing system to fund the economic consequences of implementing the common policy’. See The Palma Document. Free Movement of Persons. A Report to the European Council by the Coordinators’ Group, Madrid, June 1989, Part iii.B. 11 In December 1988 the European Commission elaborated a proposal for a ‘Directive coordinating rules concerning the right of asylum and the status of refugees’ which was rejected by Member States: Communication of the Commission on the Abolition of Controls of Persons at Intra-Community Borders, COM(88) 640 Final, 7 December 1988. 12 Convention Implementing the Schengen Agreement of 14 June 1985 on the Gradual Abolition of Checks at the Common Borders (Schengen Implementing Convention), oj (2000) L 239/19, 19 June 1990 (entry into force 1 September 1993). 13 Convention Determining the State Responsible for Examining Applications for Asylum Lodged in One of the Member States of the European Communities, oj C 254/1, 15 June 1990 (entry into force 1 September 1997). 14 The relevant part of the Schengen Implementing Convention was superseded by the Dublin Convention when it was finally ratified by all the member States and came into force in 1997. 15 See similarly E. Guild, ‘The Europeanisation of Europe’s Asylum Policy’ (2006) 18(3–4) ijrl 634–635.

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a­ sylum-seekers within the eu territory which must assume examination of their claims. Alongside this logic of immigration control, decisions of one single Member State to refuse asylum apply to the whole eu territory, whereas no such mutual recognition exists concerning the granting of refugee status. From its inception, the Dublin Convention was clearly insufficient and made sense only as the first step toward a broader asylum regime. The Dublin Convention indeed presupposes the existence of similar standards in each Member State regarding most notably the refugee definition, asylum procedure and reception standards. But its implicit premise, grounded on equivalent protection provided in all Member States, was (and is arguably still) lacking and further requires an integrated approach to asylum encapsulating its various facets. Although mere logic would have required harmonising domestic legislation before identifying the state responsible for examining an asylum claim, eu Member States thus proceeded backwards through a piecemeal approach prompted by their political will of excluding asylum-seekers from free movement within the eu territory. The Dublin Convention provided in turn a powerful incentive for establishing a common asylum system. Awareness of such a need emerged as a common concern of all stakeholders the year preceding the effective establishment of the area without internal borders. The European Council acknowledged in June 1991 that the completion of the Internal Market required harmonisation on both procedural and substantive aspects of asylum.16 The need for a more comprehensive asylum system was further endorsed by the European Commission in its Communication on the Right of Asylum published in October 1991. The Commission observed that: Growing awareness of the scale of the influx of asylum seekers and of the seriousness of its economic, social and financial consequences, coupled with more detailed analysis of the implications of the internal market, has caused the focus to shift from the question of determining the state responsible for examining applications for asylum, which has already been settled by the Convention signed in Dublin on 15 June 1990, to the asylum question as a whole, viewed not only from the formal, or procedural, angle but also from the substantive angle.17 16 17

European Council, Presidency Conclusions, Luxembourg, 28 and 29 June 1991, sn 151/3/91, Annex 1 A and B. Discussion Paper on the Right of Asylum, in Commission of the European Communities, Communication from the Commission to the Council and the European Parliament on the Right of Asylum, SEC(91) 1858 Final, 11 October 1991, 9, para 2.

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Alongside previous initiatives,18 the European Parliament endorsed in 1991 the Malangré Report, further recognizing that ‘[t]here is still an urgent need to harmonise national rules on the right of asylum’,19 ‘since the closer we come to European integration, the more the national aspect of an asylum claim recedes into the background’.20 However, despite the growing criticisms toward the intergovernmental approach so far carried out, Member States continued to act outside the scope of eu law and institutions with the adoption of soft law standards aimed at fighting the so-called abuses of asylum. In November 1992, the justice and interior ministers of the Member States adopted two resolutions and one conclusion respectively devoted to manifestly unfounded applications for asylum,21 safe third countries22 and safe countries of origin.23 This intergovernmental approach remained unchanged by the Maastricht Treaty of 7 February 1992, which entered into force on 1 November 1993. The Treaty on the European Union acknowledged asylum as a ‘matter of common interest’ within its Third Pillar devoted to the field of Justice and Home Affairs.24 The intergovernmental cooperation under the Third Pillar triggered enduring criticisms because of ‘its lack of parliamentary oversight, weakness of judicial control and the opaqueness of its working and measures’.25 Against 18

19 20

21 22 23 24

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See especially the European Parliament Resolution of 12 March 1987 on the right of asylum calling for the adoption of ‘common legal and social standards for asylum-seekers’ including common guarantees during the asylum procedure, oj C 99, 13 April 1987, 167. K. Malangré, Report on Freedom of Movement for Persons and Problems Relating to National Security in the Community, ep Documents, 1991/0199 A3, 25. Ibid 24. The European Parliament further criticised the intergovernmental approach carrying out by Member States and the fact that both the Schengen Implementing Convention and the Dublin Convention were adopted ‘outside the democratic control of the European Parliament’: Resolution on the Free Movement of Persons and Security in the European Community, oj C 267/197, 14 October 1991, para i. Resolution on Manifestly Unfounded Applications for Asylum, sn 4822/1/92 wgi 1282, 2 December 1992. Resolution on a Harmonized Approach to Questions Concerning Host Third Countries, sn 4823/92 wgi 1283, 19 November 1992. Conclusion on Countries in Which There is Generally no Serious Risk of Persecution, sn 4821/92 wgi 1281, 1 December 1992. oj C 191, 29 July 1992 (entry into force 11 November 1993), see Title vi on Cooperation in the field of Justice and Home Affairs. On 4 March 1996 the Council of Justice and Home Affairs adopted a Joint Position on the Harmonised Application of the Term ‘Refugee’, oj L 63, 13 March 1996, 2. Guild, ‘The Europeanisation of Europe’s Asylum Policy’ (n 15) 640. For a similar account see notably: D. Joly, ‘The Porous Dam: European Harmonization on Asylum in the Nineties’ (1994) 6(2) ijrl 159–193; T. Bunyan and F. Webber, ‘Intergovernmental Cooperation on

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such a frame, many commentators observed that ‘its driving principles are not universal human rights, nor the desire to establish a common asylum policy at the European level, but that asylum was framed as a side issue of the single market project, with co-operation occurring only insofar as it was deemed necessary to safeguard internal security’.26 As a result of the limits inherent to the Maastricht Treaty, a major change was introduced by the 1997 Treaty of Amsterdam, shifting asylum from the third pillar (Inter-governmental) to the first pillar (Community).27 With its entry into force in 1999, asylum was thus brought within the competence of the Immigration and Asylum’ (1995) ccme Briefing Paper No. 19; J. Bhabha, ‘European Harmonisation of Asylum Policy: A Flawed process’ (1994–1995) 35 Va J Int’l L 101–114; D. O’Keefe, ‘A Critical View of the Third Pillar’ in A. Pauly (ed), De Schengen à Maastricht: voie royale et courses d’obstacles (European Institute of Public Administration 1996) 1–16; R. Wallace, Refugees and Asylum: A Community Perspective (Butterworths 1996) 57–58; L. van Outrive, ‘Les controverses autour de la politique européenne envers les réfugiés’ in J.Y. Carlier, D. Vanheule, Europe and Refugees. A Challenge? L’Europe et les réfugiés: un défi? (Kluwer 1997) 249–265; F. Crépeau, Droit d’asile. De l’hospitalité aux contrôles migratoires (Bruylant 1995) 238–253; R. Bank, ‘The Emergent eu Policy on Asylum and Refugees: The Framework Set by the Treaty of Amsterdam: Landmark or Standstill?’ (1999) 68(1) Nordic J Int’l L 1–29; N. Berger, La politique européenne d’asile et d’immigration (Bruylant 2000) 38–41; J. van der Klaauw, ‘The eu Asylum Acquis: History and Context’ in P.J. van Krieken (ed), The Asylum Acquis Handbook. The Foundation for a Common Asylum Policy (tmc Asser Press 2000) 9–20; D. Bouteillet-Paquet, L’Europe et le droit d’asile (L’Harmattan 2001) 158–164; I. Boccardi, Europe and Refugees. Towards an eu Asylum Policy (Kluwer 2002) 69–70; R. Byrne, G. Noll and J. Vedsted-Hansen, ‘Understanding Refugee Law in an Enlarged European Union’ (2004) 15(2) ejil 362–365. 26 S. Lavenex, ‘The Europeanization of Refugee Policies: Normative Challenges and Institutional Legacies’ (2001) 39(5) J Common Market Studies 860. 27 Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts of 2 October 1997, oj C 340, 10 November 1997 (entry into force 1 May 1999). For a comment, see most notably: H. Labayle, ‘Un espace de liberté, de sécurité et de justice’ (1997) rtde 105–173; K. Hailbronner, ‘European Immigration and Asylum Law under the Amsterdam Treaty’ (1998) cmlr 1047–1068; G. Simpson, ‘Asylum and Immigration in the European Union after the Treaty of Amsterdam’ (1999) epl 91–124; K. Pollet, ‘La politique d’asile européenne après Amsterdam’ (1998) rde 98–114; J.-Y. Carlier and F. Crépeau, ‘Intégration régionale et politique migratoire. Le ‘Modèle’ européen entre coopération et communautarisation’ (1999) 126(4) jdi 953–1019; C.D. De Jong, ‘Harmonization of Asylum and Immigration Policies’ in Van Krieken (ed), The Asylum Acquis Handbook (n 25) 21–36; E. Guild and C. Harlow (eds), Implementing Amsterdam. Immigration and Asylum Rights in ec Law (Hart 2001); G.S. Goodwin-Gill, ‘The Individual Refugee, the 1951 Convention, and the Treaty of Amsterdam’ in V. Chetail and V. Gowlland-Debbas (eds), Switzerland and the International

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European Community, prompting the dramatic development of the harmonisation process. In order to establish an area of freedom, security and justice, its Article 63 laid down an ambitious five-year programme to adopt measures on asylum in a broad range of areas, including: […] (a) criteria and mechanisms for determining which Member State is responsible for considering an application for asylum submitted by a national of a third country in one of the Member States, (b) minimum standards on the reception of asylum seekers in Member States, (c) minimum standards with respect to the qualification of nationals of third countries as refugees, (d) minimum standards on procedures in Member States for granting or withdrawing refugee status; (2) measures on refugees and displaced persons within the following areas: (a) minimum standards for giving temporary protection to displaced persons from third countries who cannot return to their country of origin and for persons who otherwise need international protection, (b) promoting a balance of effort between Member States in receiving and bearing the consequences of receiving refugees and displaced persons. This provision calls for two main observations. On the one hand, some measures listed in this Article are more precise than others, thus highlighting the political priorities of the eu.28 This primarily concerns the allocation of asylum-seekers, their reception and qualification as refugees, as well as asylum procedures, whereas other related measures such as burden-sharing are worded in more general terms. This order of priority is reinforced by the final paragraph of Article 63, which excludes measures related to burden-sharing from the 1 May 2004 time limit.29 On the other hand, the very notion of the ceas is surprisingly not mentioned at all in the Treaty of Amsterdam. It was only introduced in October

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Protection of Refugees/La Suisse et la protection internationale des réfugiés (Kluwer 2002) 183–206. See also Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice, adopted by the Justice and Home Affairs Council of 3 December 1998, oj 1999 C19, 1–15. Article 64(1) further recalls in general that eu legislation on asylum do not prejudice from the responsibilities of Member States with regard to the maintenance of law and order and the safeguarding of internal security.

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1999 by the European Council in its Tampere Conclusions. The Tampere ­Conclusions thus constitute the founding act of the ceas. According to this key document, ‘[t]he European Council […] has agreed to work towards establishing a Common European Asylum System, based on the full and inclusive application of the Geneva Convention’.30 Such a new system was supposed to be established in two main steps: This System should include, in the short term, a clear and workable determination of the State responsible for the examination of an asylum application, common standards for a fair and efficient asylum procedure, common minimum conditions of reception of asylum seekers, and the approximation of rules on the recognition and content of the refugee status. It should also be completed with measures on subsidiary forms of protection offering an appropriate status to any person in need of such protection. […] In the longer term, Community rules should lead to a common asylum procedure and a uniform status for those who are granted asylum valid throughout the Union. […]31 In sum, while establishing the ceas was not required as such by the Treaty of Amsterdam, the Tampere Conclusions have encapsulated measures provided by this treaty within the broader and more ambitious objective of an integrated approach. Since the Tampere meeting, the communitarisation of asylum initiated by the Treaty of Amsterdam has thus worked in tandem with the policy objective of establishing a truly common system. The driving force of the ceas must however be found in a factor external to refugee protection and intrinsically linked to the political construction of the eu: the will of excluding asylum-seekers from free movement. The latter has indeed provided a powerful push factor for both Member States and eu institutions. Establishing the ceas has then become the leitmotiv of both the European Commission and the European Council at the verge of becoming an end in itself. The First Stage towards the ceas: From Minimum Standards to Double Standards (1999–2004) According to Article 63 tec, all asylum measures to be adopted were to set ‘minimum standards’, with the only exception of the rules governing the

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30 European Council, Tampere European Council 15 and 16 October 1999, Presidency Conclusions, para 13. 31 Ibid paras 14–15.

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determination of the Member State responsible for examining an asylum request. This means in substance that the relevant legislation had to be observed by Member States as establishing minimum standards while they could still adopt or maintain more favourable ones at the domestic level. This approach of adopting minimum standards (instead of genuinely common ones) as a first step towards the ceas was clearly dictated by its political feasibility. However this minimalist approach inevitably undermined the objective of harmonising domestic legislation. The very possibility of maintaining more favourable standards indeed compromised the harmonisation process from its inception. In addition, the adoption of minimum standards paved the way for a ‘race to the bottom’ harmonisation between Member States. This has been exacerbated by the inclination of many States to adopt restrictive domestic legislation with the view of influencing the drafting of forthcoming eu directives and regulations.32 This harmonisation ad minima was further reinforced by the influence of the European Council on the drafting of the ceas instruments. While the Commission proposed quite ambitious drafts for the purpose of drawing the layout of the ceas in line with the Tampere Conclusions, the Council negotiations considerably mitigated and undermined the content of the relevant directives and regulations. Be that as it may, the European Union succeeded in adopting a substantial number of instruments in a particularly short period of time. Indeed six major instruments – four Directives and two Regulations – were adopted in less than 5 years for the purpose of regulating the main components of the ceas. This legislative activity already represents in itself a major achievement. Furthermore, the personal and material scope of this legislative package was particularly broad and inclusive. eu instruments have identified four main categories of ­persons in need of protection and detailed their respective legal status: asylum-seekers, refugees, as well as beneficiaries of subsidiary protection and of tem­porary protection. The wide range of persons covered by the first phase instruments was reinforced by the material scope of the eu legislation aimed at encapsulating the broad variety of issues triggered by their presence within the eu territory. This highlights the systemic approach of the eu instruments, which is further apparent from the chronological order of their adoption. The first Directive was adopted in July 2001 for the purpose of regulating mass influx of asylum-seekers in the eu territory through the establishment of

32

See for instance with regard to France: V. Chetail, ‘La réforme française de l’asile: prélude à la banalisation européenne du droit des réfugiés’ (2004) 131(3) jdi 817–865.

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a temporary protection scheme.33 The Temporary Protection Directive was shortly followed by the adoption of the 2003 Dublin Regulation,34 replacing the 1990 Dublin Convention.35 Like its predecessor, the Regulation aimed at identifying the State responsible for the determination of an asylum claim with the view to give asylum-seekers only one opportunity to lodge their application within the whole eu territory. This mechanism has been supported by the Eurodac Regulation on the comparison of fingerprints, informing Member States whether the asylum-seeker concerned previously lodged a claim within another State.36 The Dublin mechanism has been further backed up by three major eu Directives, all explicitly aiming at ‘limit[ing] the secondary movements of applicants for asylum between Member States’.37 The first of these is the 2003 Directive laying down minimum standards for the reception of asylum-­ seekers.38 The Reception Conditions Directive was followed in 2004 by the adoption of the Qualification Directive, which established minimum standards of eligibility for refugee status and subsidiary protection, as well as the

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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 L 212/12, 7 August 2001. 34 Council Regulation 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, oj L 50/1, 25 February 2003 (2003 Dublin Regulation). 35 Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities of 15 June 1990, oj C 254, 19 August 1997 (entry into force 1 September 1997) (Dublin Convention). 36 Regulation 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, oj L 31/1, 15 December 2000. 37 See Recital 7 of the 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, oj L 304/12, 30 September 2004 (2004 Qualification Directive); Recital 6 of the Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, oj L 326/13, 13 December 2005 (2005 Asylum Procedures Directive); and Recital 8 of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, oj L 31/18, 6 February 2003 (2003 Reception Conditions Directive). 38 Ibid.

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content of such p ­ rotections.39 Finally, in 2005, the eu Council adopted the Directive on minimum standards and procedures in Member States for granting and withdrawing refugee status, institutionalising accelerated asylum procedures,40 as well as the controversial notions of ‘safe third country’41 and ‘safe country of origin’.42 Despite the number of instruments so adopted, the first phase of the ceas has attracted criticisms from a broad range of actors, including the unhcr, non-governmental organizations (ngos), scholars and even the European Commission. Critical comments have primarily focused on three main drawbacks. The first range of criticisms has highlighted the limits inherent to the adoption of minimum standards for the reasons mentioned above. Secondly, many observers have questioned the compatibility of the eu legislation with international law and in particular with the Geneva Convention relating to the Status of Refugees.43 In echo to the concerns raised by both academics and 39 40 41 42 43

2004 Qualification Directive. 2005 Asylum Procedures Directive, Article 23(4) especially. Ibid Article 27. Ibid Articles 23(4)(c)(i) and 31. See most notably F. Julien-Laferrière, ‘La compatibilité de la politique d’asile de l’Union européenne avec la convention de Genève du 28 juillet 1951 relative au statut des réfugiés’ in V. Chetail and J.-F. Flauss (eds), La Convention de Genève du 28 juillet 1951 relative au statut des réfugiés – 50 ans après: bilan et perspectives (Bruylant 2001) 257–286; G. Gilbert, ‘Is Europe Living Up to Its Obligations to Refugees?’ (2004) 15 ejil 963–987; E. Guild, ‘Seeking Asylum: Storm Clouds between International Commitments and eu Legislative Measures’ (2004) 29(2) European Law Review 198–218; A. Baldaccini, ‘Refugee Protection in Europe: Reconciling Asylum with Human Rights’ (2004) 1(2) Justice Journal 117–128; S. Peers, ‘Human Rights, Asylum and European Community Law’ (2005) 24(2) rsq 24–38; C. Costello, ‘The Asylum Procedures Directive and the Proliferation of Safe Country Practices: Deterrence, Deflection and the Dismantling of International Protection?’ (2005) 7 ejml 35–70; M. Garlick, ‘Asylum Legislation in the European Community and the 1951 Convention: Key Concerns regarding Asylum Instruments Adopted in the “First Phase” of Harmonization’ in T. Balzacq and S. Carrera, Security Versus Liberty? A Challenge for Europe’s Future (Ashgate 2006) 45–60; C. Teitgen-Colly, ‘The European Union and Asylum: An Illusion of Protection’ (2006) 43 cmlr 1503–1566; S. Peers, eu Justice and Home Affairs Law (2nd edn, oup 2012) 328–352; H. Lambert, ‘Introduction: European Refugee Law and Transnational Emulation’ in H. Lambert, J. McAdam and M. Fullerton (eds), The Global Reach of European Refugee Law (cup 2013) 12–18; J.-F. Durieux, ‘The Vanishing Refugee: How eu Asylum Law Blurs the Specificity of Refugee Protection’ in Lambert, McAdam and Fullerton (eds), The Global Reach 225–257. See however: N. El-Enany and E. Thielemann, ‘The Impact of eu Asylum Policy on National Asylum Regimes’ in S. Wolff, F.A.N.J. Goudappel and J.W. de Zwaan (eds), Freedom, Security and Justice after Lisbon and Stockholm (T.M.C. Asser Press 2011) 97–115.

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ngos,44 the then un High Commissioner for Refugees, Ruud Lubbers, issued ‘a stark warning […] that a crucial piece of European Union asylum legislation risked resulting in a substantial deterioration in standards – to the point of being at variance with established international law’.45 Given the risk of violating international law, ‘unhcr urge[d] the [European] Council to reaffirm its commitment to protecting the rights of refugees and other people in need of international protection, based on the full and inclusive application of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol […], and other relevant human rights instruments’.46 The third type of criticisms concerns the broad margin of discretion left by the ceas instruments to Member States. The number of possible derogations, exceptions and optional clauses contained in the Directives and Regulations was impressive and proved to be counterproductive for the purpose of developing a common policy. Most commentators concurred in observing with Catherine Teitgen-Colly that: ‘Loophole techniques’ characterized the process of harmonisation, for example: the general preference for directives rather than for more binding regulations, the very principle of ‘minimum standards’ stated in the Amsterdam Treaty amendments (Art. 63), the technique of harmonisation à la carte, the reference to national law, the ambiguity – or even contradictory nature – of certain provisions, the minimal binding force for some provisions, the possibility of exemptions and of options, and the 44

45

46

See in particular: European Council on Refugees and Exiles (ecre), Broken Promises – Forgotten Principles. An ecre Evaluation of the Development of eu Minimum Standards for Refugee Protection. Tampere 1999 – Brussels 2004; ecre, ‘Refugee and Human Rights Organizations Across Europe Express their Deep Concern at The Expected Agreement on Asylum Measures in Breach of International Law’, Joint Press Release of ecre, Amnesty International and Human Rights Watch, 28 April 2004. unhcr, ‘Lubbers Warns eu Asylum Law May Erode International Standards’, Press Release, 24 November 2003. See also: unchr, ‘Lubbers Calls for eu Asylum Laws not to Contravene International Law’, Press Release, 29 March 2004: ‘The cumulative effect of these proposed measures is that the eu will greatly increase the chances of real refugees being forced back to their home countries’. unhcr, The European Union, Asylum and the International Refugee Protection Regime: unhcr’s Recommendations for the New Multiannual Programme in the Area of Freedom, Security and Justice, September 2004, 2, para 7. For further discussions see also: A. Klug, ‘Harmonization of Asylum in the European Union – Emergence of an eu Refugee System?’ (2004) 47 gyil 594–628; unhcr, ‘Towards a Common European Asylum System’ in C. Dias Urbano de Sousa and P. De Bruycker (eds), The Emergence of a European Asylum Policy (Bruylant 2004) 227–295.

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discretionary competence often left to the States. These techniques allowed the States to preserve a substantial amount of discretion and not to be too constrained, revealing an attempt to re-nationalize the whole asylum question.47 As a result, minimum standards contained in the directives and regulations have been transformed into double standards diverging from one state to another. The huge disparities between Member States as to the rate of refugee status’ recognition provide the most concrete manifestation of the failure to establish a truly common asylum system. As observed by unhcr, ‘the chances of an individual asylum-seeker to find protection in the eu can vary nearly seventy-fold, depending on where he or she applies’.48 The European Commission further concurred in its 2008 Policy Plan on Asylum that: […] the differences in decisions to recognize or reject asylum requests from applicants from the same countries of origin point to a critical flaw in the current ceas: even after some legislative harmonisation at eu level has taken place, a lack of common practice, different traditions and diverse country of origin information sources are, among other reasons, producing divergent results. This is creating secondary movements and goes against the principle of providing equal access to protection across the eu.49 47

48 49

Teitgen-Colly, ‘The European Union and Asylum’ (n 43) 1512–1513 (footnotes omitted). For a similar account see notably: P. de Bruycker, ‘Le niveau d’harmonisation législative de la politique européenne d’immigration et d’asile’ in F. Julien-Laferriere, H. Labayle and Ö. Edström (eds), La politique européenne d’immigration et d’asile: Bilan critique cinq ans après le Traité d’Amsterdam/The European Immigration and Asylum Policy: Critical Assessment Five Years after the Amsterdam Treaty (Bruylant 2005) 45–75; H. Labayle, ‘Vers une politique commune de l’asile et de l’immigration dans l’Union européenne’ in ibid 11–43; E. Elkaïm, ‘Quelques remarques, du point de vue du négociateur’ in ibid 85–91; S. Barbou des Places and H. Oger, ‘Making the European Migration Regime: Decoding Member States’ Legal Strategies’ (2005) 6 ejml 353–379; J. Vested-Hansen, ‘Common eu Standards on Asylum – Optional Harmonisation and Exclusive Procedures ?’ in E. Guild and P. Minderhoud (eds), The First Decade of eu Migration and Asylum Law (Martinus Nijhoff 2012) 255–271. E. Feller, Remarks at the Public Hearing on the Future of the Common European Asylum System, 7 November 2007, Brussels, reprinted in (2008) 20 ijrl 216–217. Commission of the European Communities, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions, Policy Plan on Asylum: An Integrated Approach to Protection Across the eu, COM(2008) 360 Final, 17 June 2008, 3 (Policy Plan on Asylum).

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The Second Phase of the ceas: Towards a Consolidation of the Asylum Acquis (2004–2013) The weaknesses of the first generation instruments triggered a new impulse leading to a second phase of development. This new step was already scheduled by the 1999 Tampere Conclusions where the first package of asylum legislation was conceived from its inception as an initial phase which should give rise, in the longer term, to a common procedure and status. The frenetic legislating period in which numerous eu directives and regulations were adopted thus set the scene for a second phase of consolidation: the whole ceas had to be reassessed with a view to ensuring a genuine common asylum policy. This objective was explicitly underscored by the European Council in its 2004 Hague Programme, ‘Strengthening Freedom, Security and Justice in the European Union’, to guide the implementation of the second phase. While ‘urg[ing] the Member States to implement fully the first phase without delay’,50 it accordingly underlined that:

2.3

The aims of the Common European Asylum System in its second phase will be the establishment of a common asylum procedure and a uniform status for those who are granted asylum or subsidiary protection. It will be based on the full and inclusive application of the Geneva Convention on Refugees and other relevant Treaties, and be built on a thorough and complete evaluation of the legal instruments that have been adopted in the first phase.51 Since the Hague Programme, a plethoric number of somewhat repetitive policy documents were adopted for the purpose of developing the second phase of the ceas. In 2005, the European Council and the European Commission adopted the Council and Commission Action Plan Implementing the Hague Programme.52 The European Commission further published in June 2007 its Green Paper on the Future Common European Asylum System, which contained 50

Council of the European Union, The Hague Programme: Strengthening Freedom, Security and Justice in the European Union, 13 December 2004, oj C 53/1, 3 March 2005, 4, Section 1.3. 51 Ibid 3. For further comments about The Hague Programme see notably: T. Balzacq and S. Carrera, ‘The Hague Programme: The Long Road to Freedom, Security and Justice’ in Balzacq and Carrera (eds), Security Versus Freedom? (n 43) 1–32; A. Baldaccini and H. Toner, ‘From Amsterdam and Tampere to The Hague: An Overview of Five Years of ec Immigration and Asylum Law’ in A. Baldaccini, E. Guild and H. Toner (eds), Whole Freedom, Security and Justice? eu Immigration and Asylum Law Policy (Hart 2007) 1–22. 52 Council and Commission Action Plan Implementing the Hague Programme on Strengthening Freedom, Security and Justice in the European Union, 2005 oj C 198/1.

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an initial evaluation of the first phase and opened a consultative process regarding the future development of the ceas.53 In June 2008, it then proposed amendments and revisions of the first phase instruments in its Policy Plan on Asylum: An Integrated Approach across the eu.54 The Commission underlined therein that: As a whole, the first phase legislative instruments of the ceas can be considered as an important achievement and form the basis on which the second phase must be built. However, shortcomings have been identified and it is clear that the agreed common minimum standards have not created the desired level playing field. The Commission therefore intends to propose amendments to existing legislation and to consider new instruments.55 Following this new impetus, the European Pact on Immigration and Asylum was  adopted in September 2008 with the self-declared objective of building ‘a Europe of asylum’.56 While welcoming the progress achieved in the previous years, the European Council ‘observe[d], however, that considerable disparities remain[ed] between one Member State and another […]’.57 Given the immense work ahead for revising existing instruments, the deadline of the second phase initially set for 2010 in the Hague Programme was further postponed to the end of 2012.58 In parallel to these eu endeavours, the first generation instruments were also subject to critical assessments by international and non-governmental organizations as well as by other stakeholders. The unchr and the European Council on Refugees and Exiles (ecre) published two studies on the implementation of  the Qualification Directive highlighting differences of treatment among Member States.59 Besides this particular Directive, scholars have f­ urther carried

53

Commission of the European Communities, Green Paper on the Future Common European Asylum System, COM(2007) 301 Final, 6 June 2007. 54 Commission of European Communities, Policy Plan on Asylum (n 49). 55 Ibid 4. 56 Memorandum from the Presidency of the European Union to the Council of the European Union, European Pact on Immigration and Asylum, 13440/08, 24 September 2008, 11. 57 Ibid. 58 Ibid. 59 unhcr, Asylum in the European Union, A Study of the Implementation of the Qualifi­ cation Directive, November 2007; ecre, The Impact of the eu Qualification Directive on International Protection, October 2008.

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out more comprehensive assessments of eu instruments, equally underlining their limits and the correlative need for a broader reform.60 Against such a frame, the European Council adopted in December 2009 The Stockholm Programme – An open and secure Europe serving and protecting the citizens. It acknowledged that ‘there are still significant differences between national provisions and their application’ and the European Council accordingly recalled that ‘in order to achieve a higher degree of harmonisation, the establishment of ceas, should remain a key policy objective for the Union’.61 The effervescence surrounding the second phase of the ceas gained an important momentum with the Treaty of Lisbon, which was signed in December 2007 and entered into force on 1 December 2009.62 Its impact on the common asylum policy has been considerable in three main respects. Firstly, for the first time in the eu history, the very notion of a Common European Asylum System has been endorsed in a binding treaty (Article 78(2)).63 Establishing such a common 60

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P. de Bruycker et al., Setting up a Common European Asylum System: Report on the Application of Existing Instruments and Proposals for the New System, Study, European Parliament, Directorate General for Internal Policies, Policy Department C: Citizens’ Rights and Constitutional Affairs, Civil Liberties, Justice and Home Affairs, Doc. pe 425.622, 2010; S.W. Allard, ‘Casualties of Disharmony: The Exclusion of Asylum-Seekers under the Auspices of the Common European Asylum System’ (2010) 24 Emory Int’l L Rev 295–330; V. Chetail and C. Bauloz, ‘The European Union and the Challenges of Forced Migration: From Economic Crisis to Protection Crisis?’ (2011) Research Report: European University Institute, Robert Schuman Centre for Advanced Studies. European Council, The Stockholm Programme – An Open and Secure Europe Serving and Protecting the Citizens, oj C 115/1, 4 May 2010, 32. Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, oj C 306, 17 December 2007 (entry into force 1 December 2009). For a comment see especially: C. Kaunert and S. Léonard, ‘The European Union Asylum Policy after the Treaty of Lisbon and the Stockholm Programme: Towards Supranational Governance in a Common Area of Protection?’ (2012) 31(4) rsq 1–20; S. Peers, ‘Legislative Update: eu immigration and Asylum Competence and Decision-Making in the Treaty of Lisbon’ (2008) 10 ejml 219–247; J. Monar (ed), The Institutional Dimension of the European Union’s Area of Freedom, Security and Justice (Peter Lang 2010); Wolff, Goudappel and de Zwaan (eds), Freedom, Security and Justice (n 43). The notion of ceas was previously acknowledged in the Treaty establishing a Constitution for Europe adopted on 29 October 2004 (article III-266), oj C 310, 16 December 2004, 1. However it never came into force after it was rejected by the referendum organised in France in May 2005 and in the Netherlands in June 2005. For further discussions, see: J.-C.  Piris, The Constitution for Europe. A Legal Analysis (cup 2006); F.-X. Priollaud and D. Siritzky, La Constitution européenne. Texte et commentaires (La Documentation française 2005) 285–296.

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­system is thus no longer a general policy objective but a specific legal duty binding upon all Member States and eu institutions. As acknowledged by the European Commission, ‘[t]his would allow promoting a systematic approach to the asylum acquis considering it as integrated law where all the components should be interrelated leaving no space for gaps and inconsistencies’.64 Secondly, as a result of this legal endorsement, the key components of the ceas previously addressed in political documents and secondary legislation have become primary eu law objectives and set no longer ‘minimum’ but ‘common’ or ‘uniform’ standards. According to Article 78(2) of the Treaty on the Functioning of the European Union (TFUE), the ceas has to include the following core components: (a) a uniform status of asylum for nationals of third countries, valid throughout the Union; (b) a uniform status of subsidiary protection for nationals of third countries who, without obtaining European asylum, are in need of international protection; (c) a common system of temporary protection for displaced persons in the event of a massive inflow; (d) common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status; (e) criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection; (f) standards concerning the conditions for the reception of applicants for asylum or subsidiary protection; (g) partnership and cooperation with third countries for the purpose of managing inflows of people applying for asylum or subsidiary or temporary protection.65 64 Commission of the European Communities, Commission Staff Working Document Accompanying the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions, Policy Plan on Asylum, An Integrated Approach to Protection Across the eu, Impact Assessment, sec (2008) 2029, 17 June 2008, 18, para 2.3. 65 Its third paragraph further adds that: ‘In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament’.

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Among these seven core components of the ceas, the last one concerning partnership and cooperation with third countries is a newcomer compared to the Treaty of Amsterdam. It was previously only endorsed in policy documents but, with the Lisbon Treaty, has now acquired a firm legal basis – although its wording is still particularly vague and evasive.66 Thirdly and finally, Article 6(1) of the Treaty on European Union (teu) as amended by the Lisbon Treaty has established the European Charter of Fundamental Rights of 7 December 2000 with the same legal value as the eu constitutive treaties. Acknowledging the binding nature of the eu Charter of Fundamental Rights represents a welcome development for anchoring refugee rights within human rights law. The importance of the eu Charter should ­however not be overestimated. Indeed, its Article 18 devoted to asylum is of a modest reach, as it does not create new obligations. Instead, it simply reasserts that: ‘The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community’. Surprisingly enough, human rights treaties are not mentioned in Article 18 despite their vital importance for reinforcing and supplementing the Refugee Convention.67 Such a curious omission is nonetheless mitigated by three caveats. First, Article 78(1) tfue unambiguously reaffirms that the common asylum policy ‘must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties’, thus including human rights conventions. Second, Article 6(2) teu also introduces a legal obligation for the eu to accede to the European Convention on Human Rights. Third, most rights enshrined in other regional 66

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Similarly to the other provisions of the Lisbon Treaty devoted to the ceas, this last one is in fact directly borrowed from the non-binding Constitution for Europe (article III-266(2)). The changes introduced by the Lisbon Treaty are the addition of subsidiary protection to paragraph 1 – which thus includes it within the common asylum policy – and the deletion of the word ‘minimum’ in sub-paragraph 2(f) related to reception conditions. One should further notice that, in line with the European Constitution, article 80 of the Lisbon Treaty underlines that the common asylum policy ‘shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between member States’. For an overview of the role of human rights law on refugee law see V. Chetail, ‘Are Refugee Rights Human Rights? An Unorthodox Questioning on the Relations between Refugee Law and Human Rights Law’ in R. Rubio Marin (ed), Human Rights and Immigration (oup 2014) 19–72; V. Chetail, ‘Armed Conflict and Forced Migration: A Systemic Approach to International Humanitarian Law, Refugee Law and Human Rights Law’ in A. Clapham and P. Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (oup 2014) 700–734.

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and universal human rights treaties are restated in substance in the eu Charter of Fundamental Rights, including most notably the prohibition of collective expulsion and the principle of non-refoulement (Article 19).68 In sum, the new normative frame of the ceas laid down by the Lisbon Treaty represents an important step forward as it gives both Member States and eu institutions the legal means for establishing a truly common policy. It has been further institutionally supplemented by a European Asylum Support Office (easo) established in 2010. This new agency has the threefold mandate of ‘supporting practical cooperation on asylum’, providing ‘support for Member States subject to particular pressure’, and ‘contribut[ing] to the implementation of the ceas’.69 Against this background, and although belated by mid-2013, the second phase of harmonisation finally came to an end. A new Qualification Directive was adopted in 2011 and had to be implemented by Member States by December 2013.70 All the other ceas instruments were eventually adopted on 26 June 2013, namely the Recast Reception Conditions Directive,71 the Recast Asylum

68

69

70

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For further discussions about the eu Charter see especially: J.-Y. Carlier, ‘La place des ressortissants de pays tiers dans la Charte’ in J.-Y. Carlier and O. De Schutter (eds), La Charte des droits fondamentaux de l’Union européenne. Son apport à la protection des droits de l’homme en Europe (Bruylant 2002) 179–200; M.-T. Gil-Bazo, ‘The Charter of Fundamental Rights of the European Union and the Right to be Granted Asylum in the Union’s Law’ (2008) rsq 27(3) 33–52. See respectively Sections 1, 2 and 3 of Chapter 2 of the Regulation (eu) No. 439/2010 of the European Parliament and of the Council of 19 May 2010 establishing a European Asylum Support Office, oj L 132/11, 29 May 2010. For further discussion on the easo, see for instance F. Comte, ‘A New Agency Is Born in the European Union: The European Asylum Support Office’ (2010) 12(4) ejml 373–405. 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), oj L 337/9, 20 December 2011 (Recast Qualification Directive). According to Article 39(1) of the Recast Directive, the deadline for Member States to transpose the amended provisions is set on 21 December 2013. 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), oj L 1980/96, 29 June 2013 (Recast Reception Conditions Directive). See its Article 31 for the transposition deadline set on 20 July 2015.

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Procedures Directive,72 the Recast Dublin Regulation,73 and the Recast Eurodac Regulation.74 3

The Recast of the Common European Asylum System: A Preliminary Assessment

Although recently adopted, the second phase instruments of the ceas now remain to be critically assessed in light of their scope, potentials and limits. While this volume provides detailed analyses on the content of each instrument, this chapter proposes a more general assessment of their impact on the ceas as a whole. According to the European Commission, the second phase of the ceas sets out ‘common high standards and stronger co-operation to ensure that asylum-seekers are treated equally in an open and fair system – wherever they apply’.75 The views of other stakeholders (including the unhcr, ngos 72

73

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75

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), oj L 180/160, 29 June 2013 (Recast Asylum Procedures Directive). See its Article 51(1) and (2) for 2015 and 2018 transposition deadlines depending on the concerned provisions. 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), oj L 180/31, 29 June 2013 (Recast Dublin Regulation). 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), oj L 180/1, 29 June 2013 (Recast Eurodac Regulation). Website of the European Commission, Home Affairs, Common European Asylum Policy . See also: Commission Staff Working Document Accompanying the Document: Communication from the Commission to the European Parliament and the Council, 5th Annual Report on Immigration and Asylum (2013), COM(2014) 288 Final, 22 May 2014, 8: ‘The ceas will provide better access to the asylum procedure for those who seek protection; will lead to

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and scholars) are however more nuanced and contrasted. These are briefly presented thereafter (3.1) before inquiring into the potential of the new European refugee law for limiting secondary movements (3.2) and establishing common standards in conformity with international law (3.3). The Reception of the Common European Asylum System in the Refugee Law Community The second phase instruments have raised very different and contrasted comments among stakeholders. For instance, the unchr was surprisingly positive and enthusiastic. Its statement of June 2013 about the new asylum legislative package celebrates its potential and positive effect on refugee protection.76 The Refugee Agency only notes in passing that ‘some opportunities were missed to fill gaps and clarify overly broad, complex and problematic provisions’,77 while it otherwise focuses and develops on all the positive achievements of the new instruments.78 For the unhcr, ‘the reformed legislation has the potential significantly to contribute to harmonising asylum systems […] and to improve protection standards and practice across the Union’.79 unchr even ‘offers its support to Member States and other stakeholders to assist the transposition process’ of the new eu instruments into their domestic law and practice.80 This unchr statement starkly contrasts with the critical stance of ngos with regard to the second phase instruments.81 For instance, an ngo statement was adopted in June 2013 on the occasion of the final vote on the asylum package with a telling title: ‘Establishing a Common European Asylum System: Still a Long Way to Go’.82 It welcomes ‘some significant improvements such as

3.1

fairer, quicker and better quality asylum decisions; and will provide dignified and decent conditions both for those who apply for asylum and those who are granted international protection within the eu’. 76 unhcr, Moving Further Toward a Common European Asylum System. unhcr’s Statement on the eu Asylum Legislative Package, June 2013. However the unhcr Division of International Protection is preparing a commentary of the new instruments which could include more criticisms. 77 Ibid 1. 78 Ibid 2–4. 79 Ibid 1. 80 Ibid. 81 See more generally on the role of ngos in the recast of the Qualification Directive: U. Hoffmann, ‘Lobbying for the Rights of Refugees: An Analysis of the Lobbying Strategies of Pro-migrant Groups on the Qualification Directive and its Recast’ (2012) 8(1) jcer 21–39. 82 aedh, Amnesty International, Caritas Europa, Churches’ Commission for Migrants in Europe, European Council on Refugees and Exiles, International Catholic Migration

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the strengthening of the right to a personal interview, including in the Dublin procedure, the right to an effective remedy, better representation for unaccompanied children and the further approximation of protection statuses under eu law’.83 This statement however underlines that ‘some legislative provisions lack legal clarity and are ambiguous, whilst others give too much discretion to Member States, which may have the further effect of undermining the overall aim of achieving harmonised and high standards of protection across Europe’.84 It then focuses on the most problematic issues: detention, procedural guarantees for vulnerable persons, legal aid and the Recast Dublin Regulation. In short, according to ngos, ‘the legislation provides a still imperfect legal framework for a ceas that today only exists on papers’.85 Scholars have provided a more nuanced account, which accordingly constitutes a medium position between the enthusiasm of unhcr and the criticisms of ngos. While acknowledging some improvements, they still remain sceptical about the putative achievements of the new instruments. Steve Peers, a wellknown leading authority in the field of eu asylum law, provides a telling example in his thorough paper entitled: ‘The Second Phase of the Common European Asylum System: A Brave New World or Lipstick on a Pig?’. After reviewing the main changes introduced by each directive and regulation, he concludes: Taken as a whole, the second-phase legislation provides for very limited improvements as regards reception conditions, modest improvements as regards procedures and qualification, no real improvement as regards the Commission, International Rehabilitation Council for Torture Victims, Jesuit Refugee Service, Quaker Council for European Affairs, Save the Children, Establishing a Common European Asylum System: Still a Long Way to Go. ngo Statement on the Occasion of the Final Vote on the Asylum Package, Brussels, 10 June 2013. 83 Ibid 1. 84 Ibid. 85 Ibid. For a similar assertion see notably: Not There Yet: An ngo Perspective on Challenges to a Fair and Effective Common European Asylum System, Asylum Information Database, Annual Report 2012/2013, ecre, Forum réfugiés-Cosi, the Hungarian Helsinki Committee and the Irish Refugee Council, September 2013, 9: ‘The report demonstrates that the eu is still far from having a ceas worthy of the appellation “common”. The task ahead is huge and is further complicated by the fact that support for fair and humane asylum policies in Europe is decreasing’. For other critical comments addressed by ngos see also: European Group of National Human Rights Institutions, Common European Asylum System: Com­ mission Proposals Have Mixed Results, Common position, 9 January 2012; aedh, Analysis of the Forthcoming Common European Asylum System – aedh Proposals for meps, Brussels, 10 December 2012.

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Dublin rules and a significant reduction in standards as regards Eurodac. On balance the overall scoreboard is modestly positive, but as regards the Dublin rules in particular there have only been cosmetic changes to the previous objectionable legislation. This legislation in particular deserves the description of being merely ‘lipstick on a pig’.86 This contrasted assessment of the second phase instruments is shared by other scholars.87 In particular, Samantha Velluti wrote in her recent book Reforming the Common European Asylum System – Legislative Developments and Judicial Activism of the European Courts that: The recast instruments represent a notable improvement but they still fall significantly short of full compliance with human rights obligations at international and European levels. The research findings of this volume point to a gap between the Union’s commitment to the equal treatment and protection of the rights of asylum-seekers and the ability and willingness of the legislative institutions to make that commitment a reality. The legislative deadlock of the second phase of ceas and the lack of intra-state trust and solidarity stifled progress in truly reforming the ceas legal system.88

86 87

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S. Peers, ‘The Second Phase of the Common European Asylum System – A Brave New World or Lipstick on a Pig?’ (2013) Statewatch Analysis No. 220, 16. See especially: H. O’Nions, Asylum – A Right Denied. A Critical Analysis of European Asylum Policy (Ashgate 2014) esp. 131–132, 163–164 and 191–192; M.-L. Basilien-Gainche, ‘Regard critique sur le régime d’asile européen commun. La persistance d’une conception restrictive de la protection’ (2014) 24(2) Europe: Actualités du droit de l’Union Européenne 6–10; C. Bauloz, M. Ineli-Ciger, S. Singer & V. Stoyanova (eds), Seeking Asylum in the European Union. Selected Protection Issues Raised by the Second Phase of the Common European Asylum System (Brill Nijhoff 2015); F. Toscano, ‘The Second Phase of the Common European Asylum System: A Step Forward in the Protection of Asylum Seekers?’ (2013) Institute for European Studies, ies Working Paper 7/2013, 36–37; S. Sarolea and E.L. Tsourdi (eds), La  refonte de la directive relative aux conditions d’accueil: regard critique (Equipe droits européens et migrations 2013); V. Chetail and G. Ruiz, ‘Asile et immigration’ (2013) 5 jedh 875–881; J. Eaton, ‘The Internal Protection Alternative under European Union Law: Examining the Recast Qualification Directive’ (2012) 24(4) ijrl 765–792; F. Ippolito and S. Velluti, ‘The Recast Process of the eu Asylum System: A Balancing Act between Efficiency and Fairness’ (2011) 30(3) rsq 24–62. S. Velluti, Reforming the Common European Asylum System – Legislative Developments and Judicial Activism of the European Courts (Springer 2014) 3.

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As it is apparent from the contrasted views of unhcr, ngos and scholars, the  assessment of the second phase instruments substantially varies from one stakeholder to another. This actually comes as no surprise. Epistemology teaches us that any evaluation is subjective by nature and depends on the professional ethos of the relevant interpretive community. The stance of each stakeholder is further contingent on their own perception of what should be the ceas and for which purposes. Nevertheless, despite the diversity of views, there is some convergence for acknowledging that the recast instruments represent a noticeable progress compared to the previous legislation. Following this stance, it is true that the new asylum package constitutes a  clear improvement when considering the long and difficult evolution of the ceas. One should however concede that it was not difficult to do more and better than the previous legislation given the wide range of criticisms it attracted from all stakeholders. While improving the previous instruments in several respects, the second phase of the ceas is nonetheless neither a revolution nor an evolution. Instead it is both a consolidation and a specification of the asylum acquis inherited from the first phase instruments. In other words, the new instruments consist in a reformulation rather than a reform of the previous legislation. As underlined by their preamble, the recast process has been done ‘in the interests of clarity’. While the new package substantially improves the previous legislation, the real question is whether the recast instruments fulfil the objectives pursued by the ceas. If the objective is to establish a uniform status and a common procedure across the Union, the answer is negative. This ambitious purpose can hardly be reached in the current stage of eu law, which is still characterised by a preference for directives (instead of more detailed and binding regulations) and the central role conferred to Member States. This does not mean that the new asylum package is bound to fail. The recast instruments must be viewed more modestly as a new and important step – but not the last one – toward the establishment of a truly uniform status and common procedure. They are thus part of a longstanding harmonisation process with the twofold purpose of reducing secondary movements of asylum-seekers and ensuring common standards in line with international law. It is against these two distinctive – albeit complementary – objectives that the new instruments are now being assessed. Harmonisation Process and Secondary Movements of Asylum-Seekers Similarly to the previous legislation, one of the key objectives pursued by the recast instruments is ‘to limit the secondary movement of applicants for international protection between Member States, where such movement is purely 3.2

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caused by differences in legal frameworks’89 or ‘influenced by the variety of conditions for their reception’.90 This is further in line with the driving force of the ceas, which has been conceived from its inception as a flanking measure to compensate for the abolition of internal borders. From this angle, the second phase instruments detail common standards in a more precise way than in the previous legislation.91 However Member States still retain a substantial margin of appreciation in three main regards. Firstly, they may still adopt more favourable standards, undermining in turn the ambition of establishing common standards across the Union.92 Secondly, referral to domestic legislation remains an important feature of the recast instruments. To give only two illustrations, the Recast Asylum Procedures Directive explicitly refers to national law 35 times, while the Recast Reception Conditions Directive does so 25 times.93 Thirdly, even if their number has been substantially reduced, exceptions and optional clauses still continue to water down the standards spelled out in the new instruments and might thus defeat the very purpose of eu harmonisation. For instance, although free legal assistance must be ­provided in the appeals procedure, Member States can still refuse it in first instance procedures,94 as well as in any further judicial review (such as rehearing or reviews of appeals).95 Moreover, even in appeal procedures stricto sensu, the Recast Asylum Procedures Directive continues to allow Member States not to grant free legal assistance when the appeal is considered to have ‘no tangible prospect of success’ without specifying further this vague notion.96 89 90 91

92 93

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Recital 13 of the Recast Asylum Procedures Directive and the Recast Qualification Directive. Recital 12 of the Recast Reception Conditions Directive. This is notably apparent from the uniform and precise time-line required for registering asylum’s applications and examining them: see See Articles 6(1) and 31(3) of the Recast Asylum Procedures Directive. Article 3 of the Recast Qualification Directive; Article 5 of the Recast Asylum Procedures Directive and Article 4 of the Recast Reception Conditions Directive. References to domestic law in their preambles and in the articles on transposition are not taken into account in this calculus but only those contained in the substantive articles of the relevant Recast Directives. Article 20(2) of the Recast Asylum Procedures Directive. In this last case, Member States are only bound by Article 19(1) to provide on request legal and procedural information free of charge. Article 21(2)(b) of the Recast Asylum Procedures Directive. Article 20(3) of the Recast Asylum Procedures Directive simply underlines that legal assistance must not be arbitrarily restricted and effective access to justice must not be hindered. More generally, Member States may impose monetary and/or time limits on the provision of free legal assistance (article 21(4)(a)) and such assistance may be granted

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A more telling example may be given with the material reception conditions of asylum-seekers. As restated by Article 17(2) of the Recast Reception Conditions Directive, Member States shall provide ‘an adequate standard of living for applicants, which guarantees their subsistence and protect their physical and mental health’. The very content of such adequate standard is however not specified by the Directive and is accordingly left to the discretion of Member States with the ineluctable risk of encouraging secondary movements. Furthermore, the duty to provide an adequate standard of living is undermined by two broad exceptions. Article 17(5) allows Member States to grant less favourable treatment to asylum-seekers compared to nationals, ‘in particular where material support is partially provided in kind or where those level(s), applied for nationals, aim to ensure a standard of living higher than that prescribed for applicants under this Directive’. Needless to say that these two hypotheses are not further specified by the Directive and their nonexhaustive nature inevitably begs the question of the other cases which may trigger a less favourable treatment. More generally, Article 20 gives Member States the possibility of reducing or even withdrawing material reception conditions in a broad range of circumstances.97 The ambivalence of the Recast Reception Conditions Directive is further exemplified by the rules governing employment. On the one hand, asylumseekers have access to the labour market nine months (instead of twelve under the previous legislation) after the application has been lodged and provided that this delay is not attributed to the applicant.98 On the other hand, the conditions for granting access to the labour market are totally left to the discretion of Member States in accordance with their own domestic legislation.99 In sum, although the disparity between Member States regarding employment and material reception conditions are frequently heralded as the main causes of secondary movements, the Recast Reception Conditions Directive has been

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only through the services provided by legal advisers or counselors specifically designated by national law for this purpose (article 21(2)(b)). This may happen in one of the following cases: the applicant abandons the place of residence determined by the competent authority without informing it or, if requested, without permission; he does not comply with reporting duties or with requests to provide information or to appear for personal interviews concerning the asylum procedure during a reasonable period laid down in national law; he has lodged a subsequent application as defined in Article 2(q) of Directive 2013/32/EU [Recast Asylum Procedures Directive]; he has not lodged an application for international protection as soon as reasonably practicable after arrival in that Member State; or he has concealed financial resources. Article 15(1) of the Recast Reception Conditions Directive. Article 15(2) of the Recast Reception Conditions Directive.

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unable to establish truly ­common standards across the Union. Instead it identifies some general guidelines which are supposed to be defined and refined by each Member State in its national law. 3.3 Harmonisation Process and International Law The other key objective proclaimed by Article 78(1) tfeu is to develop a ­common asylum policy ‘in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties’. This has been restated by the recast instruments, according to which: [E]stablishing a Common European Asylum System [must be] based on the full and inclusive application of the Geneva Convention Relating to the Status of Refugees of 28 July 1951, as amended by the New York Protocol of 31 January 1967 […], thus affirming the principle of non-refoulement and ensuring that nobody is sent back to persecution.100 Although a comprehensive assessment is far beyond the scope of this introductory chapter, the compatibility of the recast instruments with international law may be apprehended through three types of provisions: those which have been improved to ensure better compliance; those that are still partially in line with international law; and other provisions which are arguably in breach of international law. First of all, several guarantees have been adopted in order to ensure better compliance with international law. This is particularly obvious with regard to the asylum procedure which raised a lot of criticisms under the previous legislation. The Recast Asylum Procedures Directive notably includes a mandatory personal interview of asylum-seekers and other related safeguards (such as the obligation to produce a detailed report of the interview);101 an adequate training for the authority in charge of examining asylum applications;102 more detailed guarantees for vulnerable persons (including unaccompanied

100 Recital 3 of the Recast Asylum Procedures Directive, of the Recast Qualification Directive, of the Recast Reception Conditions Directive, and of the Recast Dublin Regulation. 101 Articles 14, 15, 16 and 17 of the Recast Asylum Procedures Directive. 102 Article 4(3) of the Recast Asylum Procedures Directive. This obligation of training is also extended to the other authorities which are likely to receive asylum application such as the police, border guards and immigration authorities: see Article 6(1).

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children),103 as well as gender-specific provisions;104 an explicit access of unhcr to applicants at the border;105 and the suspensive effect of appeals.106 These procedural guarantees should contribute to a better decision-making process in order to prevent abusive rejections of asylum applications. Another key added value of the recast instruments concerns the legal regime of detention, which is now finally in line with human rights treaties. While reaffirming that asylum-seekers cannot be detained for the sole reason of their application, the Recast Reception Conditions Directive ensures that the necessity of each detention must be based on an individual assessment of the case.107 It can be decided only if other less coercive alternative measures (such as regular reporting to the authorities) cannot be applied effectively,108 with Article 8(3) further enumerating an exhaustive list of grounds justifying detention.109 Although Member States still retain a broad margin of appreciation in determining such grounds, asylum-seekers can be detained only for ‘as short a period as possible’110 and ‘a speedy judicial review’111 must be conducted ex officio or at the request of the applicant.112 Overall, the new provisions on detention represent a significant step forward compared to the previous legislation, even if it is too early to conclude that the situation has been effectively enhanced in practice given the potentially wide scope of detention grounds. The second type of modifications induced by the recast instruments has only incorporated international law in a partial or piecemeal way. For instance, while the specific needs of vulnerable persons (such as minors, disabled and elderly people) are better taken into account,113 the Recast Reception Conditions 103 104 105 106 107 108 109

110 111 112 113

See respectively articles 24 and 25 of the Recast Asylum Procedures Directive. Articles 10(3)(d), 11(3) and 15(3)(a) of the Recast Asylum Procedures Directive. Article 29(1)(a) of the Recast Asylum Procedures Directive. Article 46 of the Recast Asylum Procedures Directive. Article 8(2) of the Recast Reception Conditions Directive. Ibid. See also article 8(4). Detention can be only decided to determine or verify his or her identity or nationality; to determine those elements on which the application is based when they could not be obtained in the absence of detention; to decide on the applicant’s right to enter the territory; to prepare the return and/or carry out the removal process after he or she already had the opportunity to access the asylum procedure; to protect national security or public order of Member States; and to carry out a transfer in accordance with article 28 of the Dublin Regulation. Article 9(1) of the Recast Reception Conditions Directive. Article 9(3) of the Recast Reception Conditions Directive. Articles 10 and 11 further specify the conditions of detention (including those of vulnerable persons). See articles 21, 22, 23 and 24 of the Recast Reception Conditions Directive.

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Directive fails to recognize in accordance with the case-law of the European Court of Human Rights that asylum-seekers constitute a vulnerable group per se.114 Such a partial compliance with international law may also be found in the definition of family. Although the notion of ‘family members’ has been extended to the parents of a minor, it is still limited to the nuclear family which already existed in the country of origin and whose members are present in the same Member State in relation to the application for international protection.115 A similar observation can be done with regard to the (extra)territorial scope of the recast instruments. While they explicitly apply to any persons in the territory of a Member State (including at the border, in the territorial waters or in transit zones),116 the new asylum legislation fails to provide a similar provision with regard to its extraterritorial scope, most notably in case of interception in the high sea. By contrast, the European Court of Human Rights has made clear that such interceptions fall within the jurisdiction of State Parties which are thus bound to respect the human rights of intercepted asylum-seekers.117 These cases of partial compliance with international law not only undermine the credibility of the ceas; they are also counterproductive for the purpose of establishing truly common standards. Indeed Member States are still bound to apply the more favourable treatment required by international law. This may undermine in turn the harmonisation process and even contradict the legal certainty which is expected from a more detailed regional regime of refugee protection. A major source of concern relates to a third type of provisions, which are arguably in breach of international law. This may be exemplified by three emblematic illustrations regarding the refugee definition, the accelerated asylum procedures and the Recast Dublin Regulation. As demonstrated by Jonah Eaton, the new provision on the internal protection alternative falls below the standards of international law.118 The same holds true with regard to the actors of protection. While this notion has been slightly refined by the Recast 114 mss v Belgium and Greece, Judgment, Grand Chamber Appl no 30696/09 (ECtHR, 21 January 2011) para 251. 115 Article 2(j) of the Recast Reception Conditions Directive. See also article 2(c) of the Recast Qualification Directive. 116 Article 3(1) of the Recast Reception Conditions Directive, the Recast Asylum Procedures Directive and the Recast Dublin Regulation. 117 Hirsi Jamaa and Others v Italy, Judgment Appl no 27765/09 (ECtHR, 23 February 2012) para 180. 118 For further developments see: Eaton (n 87) 765–792.

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Qualification Directive, asserting that ‘parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State’119 can be considered as actors of protection is hardly compatible with the Refugee Convention. Indeed, the term ‘refugee’ is expressly defined by reference to the lack of protection by the State of origin. Its Article 1A(2) includes any person who ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country’.120 The only way to reconcile the Recast Qualification Directive with the Refugee Convention is to confine non-state actors of protection to authorities which substitute themselves for a failed State by replacing it both in law and practice. This interpretation is not only in line with the wording of Article 7(1) quoted above; it finds additional support in Article 7(2) which requires that protection against persecution must be ‘effective and of a non-temporary nature’. By analogy to the State’s prerogatives, this last provision further highlights that such a protection may be ensured ‘by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution’. As a result, only parties or organizations which exercise the sovereign prerogatives of a failed State can be willing and able to offer protection in accordance with the Recast Qualification Directive and the Refugee Convention. The risk of violating international law is much more insidious with regard to accelerated asylum procedures. Compared to the previous legislation, the list of circumstances in which asylum procedures can be accelerated has been cut from fifteen to ten. However they are still formulated in broad terms, which leave a considerable margin of appreciation to Member States. This is notably apparent from the controversial notion of ‘safe country of origin’ or when the applicant has only raised ‘issues that are not relevant to the examination’ of his/her asylum request.121 Although these provisions are not stricto sensu incompatible with international law, the discretion left to decision-makers can increase the risk of refoulement in breach of the Refugee Convention. Such a risk is all but virtual. Because of the subjectivity inherent to the grounds listed in Article 31 of the Recast Asylum Procedures Directive, accelerated procedures 119 Article 7(1) of the Recast Qualification Directive. 120 Emphasis added. By contrast, article 1A(2) is indifferent to the origin of persecution which can emanate from both state and non-state actors as confirmed by article 6 of the Recast Qualification Directive. 121 Article 31(8)(a) and (b) of the Recast Asylum Procedures Directive.

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may become the rule rather than the exception. Likewise, given the broadly formulated criteria for accelerated and border procedures, it is questionable whether the Recast Directive will result in an increased harmonisation across Member States. This is especially the case for the concept of safe country of origin, since it is up to the domestic legislation of each Member State to determine the rules and modalities of its application.122 The Recast Dublin Regulation also raises tricky questions when it comes to its compatibility with international law. It is true that procedural guarantees have been substantially improved with the right to a personal interview123 and the right to an effective remedy with a suspensive effect.124 The Recast Dublin Regulation has however missed the opportunity to review its premises and underlying principles in line with international law. Indeed the very fact that asylum-seekers have only one single chance to submit their claim among the 28 Member States is grounded on the debatable assumption that ‘Member States, all respecting the principle of non-refoulement, are considered as safe countries for third-country nationals’.125 This presumption of equivalent protection among eu Member States has been challenged by the European Court of Human Rights. Its Grand Chamber has recalled in mss v Belgium and Greece that the Dublin Regulation does not absolve Member States from their duty to assess the risk of refoulement by the State in charge of examining the asylum request.126 122 123 124 125 126

Article 36(2) of the Recast Asylum Procedures Directive. Article 5 of the Recast Dublin Regulation. Article 26 of the Recast Dublin Regulation. Recital 3 of the Recast Dublin Regulation. ‘[W]here States cooperated in an area where there might be implications as to the protection of fundamental rights, it would be incompatible with the purpose and object of the Convention if they were absolved of all responsibility vis-à-vis the Convention in the area concerned […]. When they apply the Dublin Regulation, therefore, the States must make sure that the intermediary country’s asylum procedure affords sufficient guarantees to avoid an asylum seeker being removed, directly or indirectly, to his country of origin without any evaluation of the risks he faces from the standpoint of Article 3 of the Convention. […] In the light of the foregoing, the Court considers that at the time of the applicant’s expulsion the Belgian authorities knew or ought to have known that he had no guarantee that his asylum application would be seriously examined by the Greek authorities. […] The Court considers […] that it was in fact up to the Belgian authorities, faced with the situation described above, not merely to assume that the applicant would be treated in conformity with the Convention standards but, on the contrary, to first verify how the Greek authorities applied their legislation on asylum in practice’. ECtHR, mss v Belgium and Greece (n 114) paras 342, 358 and 359 (footnotes omitted). A similar ruling was rendered by the cjeu in the case of ns v Secretary of State for the Home Department and me,

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The dubious compatibility of the Dublin Regulation with international law is all the more troubling as it concerns an essential piece and, even more, the cornerstone of the ceas. This raises the question of the very purpose pursued by the eu. The long and complex evolution of its asylum policy gives the impression that excluding asylum-seekers from the free movement regime has been erected as an end in itself, at the expense of international law. Although the situation has been substantially improved by the recast instruments, no radical reform has been envisaged to seriously tackle the flaws of the ceas. This unveils the limits of such a regional regime, which is conceived and implemented as a flanking measure to compensate for the abolition of internal borders. As observed by Elspeth Guild, ‘[b]y leaving this part of the population out of the free movement equation, the eu became a hostage to its own failure towards refugees as these became the people on the basis of whom the creation of substantial coercive measures to compensate the loss of control at the intra-Member-State borders was based’.127 4

Conclusion: Waiting for Godot – Promises and Pitfalls of the Common European Asylum System

While the harmonisation process has been reinforced and consolidated by the recast directives and regulations, there is still a long road for a genuine ceas to be achieved. For the reasons developed above, the second phase instruments are neither radically new nor truly common. They nonetheless constitute an important step towards a Common European Asylum System, which is rather a work in progress than a legal reality. Following this stance, the overall picture

ASM, MT, KP and EH v Refugee Application Commissioner, Minister for Justice, Equality and Law Reform, Judgment, Grand Chamber, (Joined Cases Nos C-411/10 and C-493/10, 21 December 2011) where the Court concluded that: ‘European Union law precludes the application of a conclusive presumption that the Member State which Article 3(1) of Regulation No 343/2003 indicates as responsible observes the fundamental rights of the European Union’. In contrast to the ECtHR Judgment, the cjeu however considered that Dublin transfers would be prohibited only when the transferring Member State ‘cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of [Article 4 of the eu Charter of Fundamental Rights]’ (emphasis added). 127 Guild, ‘The Europeanisation of Europe’s Asylum Policy’ (n 15) 634–635.

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could be described as being ‘modestly positive’ to quote Steve Peers.128 Now that the recast instruments have been adopted, the future development of the ceas will depend on their effective implementation by Member States. The eu Court of Justice also has a crucial role to play in order to promote a common understanding of the different components of the ceas. It will be further instrumental in articulating them into a truly common system. A system is more than the sum of different legal instruments adopted on the same topic. It presupposes a cogent and comprehensive frame in which each instrument is articulated with the others. From this systemic perspective, the ceas is halfway between a bric-à-brac and a true system. The key challenge will be to transform the existing collection of eclectic instruments into a coherent regime of refugee protection. This represents in turn a key opportunity for the eu Court of Justice to develop a systemic approach to the asylum acquis. For the time being, the ceas can be compared to a legal puzzle in which the different pieces are on the table but have to be assembled in a coherent and effective manner, while other important pieces are still missing. The next stage towards the establishment of a ceas must focus on these missing pieces for the purpose of providing a truly comprehensive system. They notably concern three main areas related to its personal, material and geographical scope. First, there is no eu law addressing persons who benefit from purely national forms of protection in parallel to the refugee status and subsidiary protection. The same observation applies to persons who benefit from no legal status at all but cannot be returned to their own countries. These so-called ‘non-expulsable, non-regularisable’ notably concern those who are excluded from the refugee status and subsidiary protection because of a serious crime they may have committed while still being protected by the absolute principle of non-refoulement under human rights law. Likewise, the fact that the ceas only applies to third country nationals – and not eu citizens – remains highly disputable from the perspective of international law. This further undermines the completeness of the whole system.129 Second, the new asylum legislation does not address the crucial issue of access to the territory, which is primarily governed by the eu legislation ­governing border control and irregular migration.130 As long as considerations 128 Peers, ‘The Second Phase’ (n 86) 16. 129 For further discussions see notably: R. Stern, ‘At a Crossroads? Reflections on the Right to Asylum for European Union Citizens’ (2014) 33(2) rsq 54–83; E. Guild, ‘The European Geography of Refugee Protection – Exclusions, Limitations and Exceptions from the 1967 Protocol to the Present’ (2012) 4 ehrlr 413–426. 130 Access to the eu territory is primarily regulated by the following founding instruments, which were all subject to further amendments: Regulation (ec) No. 562/2006 of the

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of migration control will prevail over the need for protection, the ceas will be unable to provide a comprehensive regime of refugee protection. As exemplified by the tragedy of refugees from Syria, there is a vital need for developing eu Protected Entry Procedures and humanitarian visas. Third, and similarly, there is a huge gap between the internal and external components of the ceas. While the former is now governed by a broad range of sophisticated instruments, the latter is still in the infancy stage. In particular, the Joint Resettlement Programme launched in 2009 has proved to be very limited: only 10 Member States have been involved on a purely voluntary basis and, during the Arab Spring, only 700 resettlement places were offered.131 Although the situation has been improved since then, the recent crisis of the Mediterranean Sea has highlighted the lack of solidarity between EU Member States and the need for a stronger and more ambitious resettlement programme. With the entry into force of the Lisbon Treaty, the external dimension of asy­ lum now benefits from a clear-cut legal basis which calls for future partnership European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), oj L 105/1, 13 April 2006; Regulation (ec) No. 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code), oj L 243/1, 15 September 2009; Council Regulation (ec) No. 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, oj L 81/1, 21 March 2001; Regulation (ec) No. 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (vis) and the exchange of data between Member States on short-stay visas (vis Regulation), oj L 218/60, 13 August 2008. These instruments are further complemented by a whole system of operational cooperation between Member States with the view to prevent and fight irregular migration. See most notably: Council Regulation (ec) No. 2007/2004 of 26 October establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, oj L 349/1, 25 November 2004 (Frontex Regulation), amended by Regulation (ec) No. 863/2007 (rabit Regulation, oj L  199/30, 31 July 2007), Regulation (eu) No. 1168/2011 (oj L 304/1, 22 November 2011); Regulation (eu) No. 1052/2013 of the European Parliament and of the Council of 22 October 2013 establishing the European Border Surveillance System (Eurosur), oj L 295/11, 6 November 2013; and Regulation (eu) No. 656/2014 of the European Parliament and of the Council of 15 May 2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, oj L 189/93, 27 June 2014. 131 E. Guild and V. Moreno-Lax, ‘Current Challenges Regarding the International Refugee Law, with Focus on eu Policies and eu Co-operation with unhcr’ (September 2013) ceps Paper in Liberty and Security in Europe, No. 59, 18.

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and cooperation with third countries.132 As underlined by Elspeth Guild and Violeta Moreno-Lax, the next step will be ‘to ensure that the external dimension of asylum is consistent with its internal counterpart’.133 This is further prescribed by Article 7 tfeu, according to which ‘the Union shall ensure consistency between its policies and activities, taking all of its objectives into account’. This duty of consistency is not only relevant for ensuring a better balance between the internal and external components of the ceas.134 It must be a primary consideration for developing a systemic approach to the asylum acquis whereby all the instruments are integrated and interrelated within a cogent frame of analysis. Although the eu Court of Justice has a particularly important responsibility for carrying out such an approach, one should not overestimate the potential of existing instruments for establishing a uniform status and a common procedure across the Union. The preference for directives (instead of regulations) and the correlative role conferred to Member States represent important obstacles on the long road to harmonisation. There will always be room for variance and disharmony as long as asylum procedures are implemented at the domestic level by each individual Member State. True harmonisation can only be achieved through a radical departure from the current structure and rationale of the ceas. An asylum procedure exclusively managed by the eu could be the answer provided it is supplemented by a system of responsibilitysharing between Member States.135 Needless to say that such a possibility remains remote and, for a while, we will still wait for the ceas as Estragon and Vladimir did so for Godot. Interestingly, when Beckett was asked who is Godot, the author replied: ‘it is just implied in the text, but it’s not true’.136

132 Article 78(2)(g) tfue. 133 Guild and Moreno-Lax (n 131) 20. 134 See also article 21(3) teu: ‘The Union shall ensure consistency between the different areas of its external action and between these and its other policies’. 135 For further details see Chetail and Bauloz (n 60) 31–32. 136 Colin Duckworth’s introduction to En attendant Godot (George G Harrap & Co 1966) lx.

chapter 2

The Complex Relationship of Asylum and Border Controls in the European Union Elspeth Guild* 1 Introduction Among the most contested aspects of asylum and refugee law both within international and European Union (eu) law is the relationship of the State sovereign right to control territorial borders and the duty to prevent refoulement of people in need of international protection.1 The tension arises first from a certain reluctance, much in evidence in Europe, among interior ministries of eu States to welcome people searching for international protection before or as they arrive at the borders of the State. The dominant position among these ministries is that people should seek asylum somewhere else, for instance within their own region or in countries neighbouring a conflict rather than come to Europe.2 Secondly, as tensions require more than one position, one must take into account the situation of people in flight from persecution, torture, inhuman or degrading treatment or armed conflict. They, not infrequently, want to achieve protection in the eu rather than in camps on the borders of the country from which they are fleeing often for very good reasons not least of their personal physical integrity. Thus people in flight often keep fleeing until they arrive somewhere where they consider that they will receive durable protection, support and the possibility of a new life if the situation in their country of origin does not improve. Thus people in flight often find themselves, simply by their * Jean Monnet Professor ad personam, Radboud University Nijmegen, Queen Mary, University of London, Centre for European Policy Studies. 1 V. Chetail and C. Bauloz, ‘The European Union and the Challenges of Forced Migration: From Economic Crisis to Protection Crisis?’ (2011) Research Report: European University Institute, Robert Schuman Centre for Advanced Studies. 2 S. Lavenex, Safe Third Countries: Extending the eu Asylum and Immigration Policies to Central and Eastern Europe (Central European University Press 1999), L. Schuster, ‘Common Sense or Racism? The Treatment of Asylum-Seekers in Europe’ (2003) 37(3) Patterns of Prejudice 233–256.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004308664_003

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existence and presence, treated as obstacles to good migration management by parts of interior ministries.3 Thirdly, as tensions rarely come in twos, other ministries of eu States, most importantly the foreign affairs ones, are normally also required to respond to the international community regarding the State’s international obligations, such as its compliance with the non-refoulement obligations of the Refugee Convention, the Convention against Torture etc. In order to maintain a good reputation as a faithful member of the international community, foreign affairs ministries not infrequently have to seek information (and indeed sometimes changes of practice) from interior ministries to ensure that international commitments are complied with fully. United Nations (un) Treaty Bodies regularly require States to account for their actions in respect of foreigners, including asylum-seekers when carrying out country periodic reviews of compliance with the Treaty under which they were created. The foreign affairs ministries are required to provide satisfactory answers and respond to the Body’s conclusions particularly where they are critical. International actors, such as the United Nations High Commissioner for Refugees (unhcr) also may take positions, such as regarding what States have reception conditions sufficiently able to provide protection so that asylumseekers can be sent there.4 Their obligations under international treaties may require them to provide oversight to the correct application of international commitments contained in it. Non-governmental organisations (ngos) also play roles through their research, publication and lobbying activities.5 These activities can not only have consequences for the international reputation of a State but also and often critically may diminish domestic support for a specific policy though convincing members of parliaments and the public of the negative externalities of various asylum related policies.6

3 R. Zetter and M. Pearl, ‘The Minority within the Minority: Refugee Community-based Organisa­ tions in the uk and the Impact of Restrictionism on Asylum-Seekers’ (2000) 26(4) jems 675–697. 4 See for instance unhcr on the situation in Bulgaria 2014: un High Commissioner for Refugees (unhcr), Bulgaria as a Country of Asylum. unhcr Observations on the Current Situation of Asylum in Bulgaria, 2 January 2014. 5 See for instance Human Rights Watch’s (hrw) submissions to the un Committee against Torture on the Treatment of Asylum Seekers at Seas by Greece, 24 March 2014 accessed 26 June 2014. 6 In Europe, caritas (which brings together the catholic churches), the Churches Committee for Migrants in Europe (which brings together the Protestant churches), the Jesuit Refugee Service and numerous other faith and non-faith groups perform these functions.

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Into this mix, the eu is a central player as it seeks to ensure the correct implementation of the second phase of the Common European Asylum System (ceas) mainly adopted in 2013, and designed to bring coherence and uniformity to asylum in the Union. Adopted under the post Lisbon legislative rules, these measures are equally the product of the Council of Ministers which adopted them, representing the Member States but also the European Parliament which enjoyed co-decision making powers for this second phase. In addition to the Commission’s job as guardian of the treaties to ensure proper transposition of the measures, the eu has a number of agencies whose tasks are centrally implicated in the tensions around State sovereign borders: the eu’s external frontiers agency, Frontex, its asylum support agency easo and its large scale information technology (it) system agency. The place where these tensions are played out most dramatically in Europe is in the seas – the so-called blue borders. What the eu’s border control coordination agency, Frontex, calls the green borders, do not at the moment give rise to substantial tensions. The blue borders where water separates the eu’s external border from the rest of the world are the focus of intense scrutiny about the eu’s commitment to human rights and refugee protection. There appear to be a number of reasons for this, among those most frequently put forward are: 1. 2. 3. 4.

The seas provide an area between the State sovereignty of one country and the next which area is no longer governed by national law but by international law of the sea and a variety of other laws and rules;7 People who pass through this space which is outside the control of any specific sovereign State are more visible than those who are simply prevented from stepping across a border;8 There is mortal danger attendant on sea crossings, particularly if the boats used are inadequate;9 Even rivers where State sovereignty is clear seem to provide particularly potent places for the enactment of that sovereignty (for instance the Evros river between Greece and Turkey which has been the site of a Frontex Rapid Action Team operation and more recently the building of

7 M. Scheinin, ‘Rescue at Sea: Human Rights Obligations of States and Private Actors, with a Focus on the eu’s External Borders’, rcas Policy Papers 2012/05, 2012. 8 S. Klepp, ‘A Contested Asylum System: The European Union between Refugee Protection and Border Control in the Mediterranean Sea’ (2010) 12 ejml 1. 9 S. Grant, ‘Recording and Identifying European Frontier Deaths’ (2011) 13 ejml 135.

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5.

a wall to prevent people, some or indeed perhaps even many of whom may be searching for international protection, from entering Greece);10 Air borders (the application of border controls at airports) tend to be orderly and fairly well regulated not least because of the necessity of good organization for airports to operate successfully.11

Some of these reasons are well founded, others are of more questionable validity. In the chapter which follows, I will examine the background to the state of asylum in the eu. I will do so in the following four sections. First, the state of asylum in the eu in 2014: what do we know about asylum-seekers who come to the eu – who are they, where do they come from, where do they go and do they qualify for international protection (Part 2). How do asylum-seekers fit into the wider picture of foreign nationals coming to the eu; do they represent a statistically significant percentage of arrivals to the eu; are there a lot more asylumseekers in 2014 than there were twenty years ago (Part 3). Do eu Member States care for a relatively similar percentage of asylum-seekers relative to their own populations; do states with substantial sea borders care for more asylum-­ seekers than those inland (Part 4). And finally, how do asylum-seekers arriving by sea in the Mediterranean compare with other people arriving by sea in the Mediterranean (Part 5). These sections will be of varying lengths and there will be a substantial amount of data included in them. This can sometimes be off putting for the more casual of readers as it is not always restful to read about percentages and statistics when a shocking headline is more enticing. But the story of asylumseekers in the eu and their relationship with the sea merits more than a casual regard. Further, as the eu places increasing emphasis on evidence led policy making, it is our duty as academics to examine the evidence, to assess it and to  seek to inform the policy debate on the basis of that evidence. That the ­evidence may not correspond to popular images of ‘reality’ and therefore may be tiresome not least because it contradicts widely accepted notions is no excuse for an academic to fail to put forward that evidence. Academics in the social sciences often pride themselves on speaking truth to power. In this field it is  unsettling how little actual ‘truth’ is presented to those making policy decisions. 10 11

F. Baban and K. Rygiel, ‘Snapshots from the Margins: Transgressive Cosmopolitanisms in Europe’ (2014) 17(4) ejst 461–478. T. Gammeltoft-Hansen, ‘Growing Barriers: International Refugee Law’ in M. Gibney and S.  Skogly (eds), Universal Human Rights and Extraterritorial Obligations (University of Pennsylvania Press 2010) 55.

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The State of Asylum in the European Union in 2014

At the time of writing in June 2014, eurostat, the eu’s statistical agency, had published its 2013 report on asylum in the eu.12 It gives an interesting picture of the state of international protection in the eu. I will focus on some of the information which the report contains, specifically, the relative number of people seeking asylum in the eu, their distribution across the Member States and outcomes. The questions I will seek to answer from this report are: what do we know about asylum-seekers who come to the eu, who are they, where do they come from, where do they go and do they qualify for international protection. eurostat provides information on the number of asylum applications which are registered in a specific year. As it is the registration of asylum-seekers which is counted, these figures differ from the asylum statistics which Frontex provides which are based on arrival of persons. eurostat noted a total of 435,000 registered asylum applications in 2013, an increase of about 100,000 asylum applications from those registered in the preceding year. This figure is an aggregate of all outstanding asylum applications at the end of the year which may include asylum applications which were registered in earlier years but not dealt with or asylum applications by people who have been resident in the eu on other grounds even if for substantial periods of time (e.g. students who seek asylum as a result of a change of situation in their country of origin). This means that the figure which eurostat provides is substantially higher than that which Frontex provides, which is the simple number of people who applied for asylum in the preceding year. The reason for this is that for instance, if a Member States slows down in the determination of asylum applications, then the number of outstanding asylum applications in the following year will be higher as it will include those not yet determined. But the brute number of new applications over a period may be lower. The largest group of asylum-seekers in the eu in 2013 are Syrian nationals. The second largest group by nationality is Russian followed by Kosovar and Eritrean nationals. The majority of asylum-seekers in 2013 were between the ages of 18–34 (50.4%) but almost 20% were under 14 years of age. About 30% of applicants overall are women. The picture becomes much more diverse when one looks at the five main nationalities of asylum-seekers by Member State. While the eu top five are Syrians, Russians, Afghans, Serbians and Pakistanis, no Member State has this 12

eurostat, ‘Data in Focus 3/2014 – Asylum Applicants and First Instance Decisions on Asylum Applications 2013’, 2014.

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list nationally. In Germany the top five were Serbians, Russians, Syrians, Kosovars and Afghans while in neighbouring France the list was Kosovars, nationals of the Democratic Republic of Congo, Albanians, Russians and Bangladeshis (interestingly Syrians do not count in the top five at all in France). The top five in Malta were Somalis, Eritreans, Syrians, Libyans and Nigerians while in neighbouring Spain the top five were Malians, Syrians, Algerians, Nigerians and Somalis. Surprisingly, in Greece where asylum policy is highly controversial, of the eu top five only two are in the Greek national top five nationalities – Afghans and Pakistanis. This striking variation of the countries of origin of asylum-seekers in neighbouring eu States is indicative of the problems the eu has in achieving a genuinely common European Asylum System. As asylum-seekers are not homogeneous in their distribution by country of origin in eu States, the responses of eu States tend to differ. The urgency of the correct application of the ceas may be much less obvious in a Member State where most asylum-seekers come from a State where there is long term and internationally recognized turmoil but more so where the crisis in the State of origin is very immediate and the long term prognosis unclear (such as Syria). The political situation in Syria was cataclysmic in 2013 with a full scale civil war ongoing and according to unchr more than 2 million refugees pouring out of the country into the region in that year. The human rights situation in Russia was rather contested, not least policies of homosexuality became a focus of attention at the time of the Sochi winter Olympics. Human Rights Watch’s report on the country in 201313 indicates a wide range of serious human rights issues at issue in the country. The anticipated withdrawal of United States (us) combat troops from Afghanistan by the end of 2014 has not led to greater calm in the country. According to a un report there was a rise of 14% in all casualties in the country in 2013.14 Serbia presents a rather more complicated picture as on the one hand it is the only country in the eu top five whose nationals are not subject to a mandatory visa requirement to enter the eu (other than Ireland and the uk). Also, a number of residents of Kosovo are eligible for Serb passports. The European Roma Rights Centre, a respected ngo working in the region, presented to the European Commission a detailed report on discrimination and attacks on Roma in Serbia in 2013 for consideration in

13 14

hrw, ‘World Report 2013 – Russia’, 2014 accessed 9 June 2014. J. Donati, ‘Afghan Civilian Deaths up in 2013 as War Intensifies: u.n.’ Reuters (8 February 2014) accessed 10 June 2014.

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the context of accession negotiations.15 The catalogue of racist attacks and other egregious human rights abuses against Roma which receive no or utterly inadequate police action and criminal justice investigation in the country is most worrying. Even a cursory examination of Pakistan also reveals multiple human rights violations in 2013.16 As human rights abuses in the country of origin of asylum-seekers are the most common reason which individuals seeking international protection give in explanation of their flight, the existence and persistence of serious and persistent human rights abuses, civil war or armed conflict in the five main countries of origin of eu asylum-seekers is particularly important. Simply put, if a country is engaging in human rights abuses or is in civil war, people are likely to flee for good reason. According to eurostat, 34.54% of asylum applications determined in 2013 received positive decisions, which means that the individuals received international protection in the eu. This includes the notoriously low success rates for asylum-seekers in Greece which in 2013 was 3.82%. But the success rates of asylum-seekers of the same nationality vary substantially across the Member States. This information is not, however, available from eurostat, one must look at the unhcr to find this data (the most recent date from 2012).17 Taking only Syrian nationals seeking asylum in selected eu Member States, the success rates are: Austria: 88.6% / Cyprus: 18.2% / France: 92% / Greece: 0.7% / Malta: 5.0% / Netherlands: 92.4%. This disparity in outcomes is not new. I have highlighted the problem in many publications at least since 1996.18 The fact that after more than ten years of the ceas there are still such astonishing differences is a matter of some surprise and disappointment. What is also interesting is that while the recognition rates for asylum-­seekers from the same countries of origin vary dramatically depending on which eu State considers the application, year after year, asylum-seekers from countries of origin with very low recognition rates in one Member State still continue to apply for asylum in that State. It is difficult to know why this happens. It may 15

16 17 18

European Roma Rights Centre (errc), ‘errc Submission to the European Commission on Serbia’, 26 May 2014 accessed 9 June 2014. hrw, ‘World Report 2013 – Pakistan’, 2014 accessed 9 June 2014. unhcr, ‘2012 Statistical Yearbook – Annex’ 2013 accessed 9 June 2014. E. Guild and J. Niessen, The Developing Immigration and Asylum Policies of the European Union: Adopted Conventions, Resolutions, Recommendations, Decisions and Conclusions. (Kluwer Law International 1996).

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well be that there is a lack of knowledge among asylum-seekers about their chances in different Member States. It could also be evidence of the success of the Dublin iii system where asylum-seekers are sent back to their first country of entry into the eu unless special circumstances apply. But this is unlikely as the actual numbers of asylum-seekers sent back under the Dublin iii regime is very small indeed.19 In any event, 70% of all eu bound asylum-seekers registered in Germany, France, Sweden, uk and Italy. This reveals a very incoherent loading of asylum-seekers across the eu. Almost no asylum-seekers had their claims registered in the Baltic States. It remains somewhat surprising that Spain, a large State with a long Mediterranean coast is not among the top five destination States. It is not clear that most asylum-seekers actually manage to register their asylum claims in the Member State where they wish to do so. The Dublin iii system is designed to obstruct such choice by asylum-seekers setting out a system of allocation according to eu drawn rules. Yet, the operation of the Dublin system is by no means complete and is unlikely to become more effective over time. 3

How Do Asylum-Seekers Fit into the Wider Picture of Foreign Nationals Coming to the European Union?

According to the un World Tourism Organization in 2011 over 375 million non eu nationals entered the eu. According to Council Document No.13267/09 of 22 September 2009, in the first week of August 2009, there were a total of 12,907,581 entries and exits into and out of the eu as a whole. Of those, third country nationals who are not required to have visas to enter the eu accounted for 2,130,256 in that week (entries and exits). Third country nationals from States where the eu does apply a mandatory visa requirement, the number of entries and exits was 1,464,660 in that week alone. According to Frontex, eu border guards refuse entry into the eu to between 108,651 (2010) and 128,902 (2013) people at the eu external frontiers per year.20 The top five nationalities of people refused entry at the eu’s external border were Russians, Ukrainians, Albanians, Serbians and Georgians. The main reason for their refusal was lack of a valid visa (over 50,000 of the refusals were on this basis). The second most common reason for refusal was lack of a valid purpose for entry (accounting for 26,588 refusals in 2013). 19

See European Commission, Annual Report to the European Parliament and the Council on the Activities of the Eurodac Central Unit in 2012, com(2013) 485 final, 28 June 2013. 20 See ‘Frontex, Annual Risk Analysis 2013’, April 2013.

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In any event, there is a very low co-relation between the number of third country nationals who enter and exit the eu and the number of third country nationals refused at the eu’s external border. What is clear is that the eu is an area which is very open to movement of people of both its own Member States and those of other countries. With almost 13 million people entering and leaving the eu every week, each one of those person being subject to an entry check and within the Schengen area an exit check, eu border guards are clearly able to process very substantial numbers of people coming and going with little difficulty. Of course some border crossing places are busier than others, hub airports will receive more people than regional counterparts. Big highway crossing points will have more traffic and so controls than country farm roads between eu Member States and third States. Sea ports are with busy ferry traffic across the Mediterranean. For instance, according to a popular travel website to go from Spain to Morocco or from Morocco to Spain: ‘travel…on the Algeciras Tangier Med ferry route with a combined choice up to 29 sailings per day on offer with numerous ferry companies – 7 with Balearia, 7 with Trasmediterranea, 12 with frs and 3 with Inter Shipping’.21 The cost of a one way ticket is about €35. The Algerciras port is clearly a busy place with a lot of people coming and going, all needing to be checked in and out by the border guards. Asylum-seekers, numbering 353,991 according to Frontex in 2013, are, therefore, a rather insignificant proportion of the third country nationals arriving in the eu. Indeed, when compared to how many third country nationals enter and leave the eu in one week (i.e. 13 million) one would have to be forgiven for thinking than less than 400,000 asylum-seekers could probably be accommodated in one of those same weeks let alone spread out over 52 weeks of the year. Yet, the popular discourse and that of both Member States and eu institutions presents a very different picture. A uk poll in March 2011 found that 72% of respondents thought there were more than 100,000 asylum applications a year in the uk and some 20% though the uk received over half a ­million.22 A prestigious German journal Der Speigel analysed the issue in 2013 and the perspectives from Germany on asylum-seeker arrivals.23 The eu i­nstitutions express 21 22

23

See the Direct Ferries Website accessed 26 June 2014. nat Still Human Still There, Campaign to End Destitution of Refused Asylum Seekers, ‘Dealing with Asylum Misconceptions – Q and A’ accessed 26 June 2014. J. Dahlkamp and M. Popp, ‘Asylum Crisis: How Many Refugees Can Germany Handle?’ Der  Spiegel (14 October 2013) accessed 26 June 2014.

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concern at the rising numbers of asylum applications in the eu carefully avoiding the fact that an eu of almost half the current size received almost double the number of asylum-seekers in 1992 than it does in 2014. In the Commission’s Communication on the work of the Task Force Mediterranean24 addressing the issues of people seeking to come to the eu by sea, there is no mention of providing asylum in the eu (clearly the objective of many of the people trying to get to the eu by sea) instead there is a long section on regional protection programmes outside the eu, resettlement (preferably somewhere else – encourage resettlement efforts both among the eu Member States and countries across the globe) and only a vague reference to possibilities for protected entry into the eu and primarily in migration categories not asylum related ones. 4

What Percentage Do Asylum-Seekers Account For Relative to Member States Own Populations, Resources and Size?

The discussion about which Member States are subject to the greatest pressures regarding asylum-seekers’ arrival and care leads one to believe that the States with long Mediterranean sea borders are under most pressure. The Italian military operation Mare Nostrum which began on 18 October 2013 after the death at sea of a number of asylum-seekers trying to arrive in the eu but on boats which were insufficiently seaworthy, is presented as a response to an overwhelming and enormous need and obligation.25 Interestingly, the Italian Navy presents itself as a dual use body, with both military and civilian operations. As a result and assuming that this is not questioned, it can receive eu funding for the civilian part of its activities.26 eurostat does not provide a readily available comparative source of information on Member States relative contribution to the protection of asylum-seekers and refugees. However, unhcr in its Statistical yearbook series does provide such data.27 At table 24, it sets out three criteria against 24

25

26 27

European Commission, Communication from the Commission to the European Parliament and the Council on the work of the Task Force Mediterranean, com(2013)869 final, 4 December 2013. See the website of the Italian Navy and the description of the Mare Nostrum Operation accessed 26 June 2014. See the Italian Navy website accessed 26 June 2014. unhcr, ‘2012 Statistical Yearbook – Annex’ (n 17).

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which to judge countries’ contribution to refugee protection: (a) refugees to gdp per capita – this measure tells the reader how rich the country is in comparison to how many refugees it hosts. This measure is designed to indicate the relative wealth of a country in comparison to number of refugees who live there. (b) Refugees to 1,000 in habitants – this is a simple test of how many refugees there are compared to the overall population of the country. It shows whether there are a lot or not so many refugees in comparison to the p ­ opulation – is the country really ‘full’ of refugees or rather empty when compared to other like countries. (c) The number of refugees per 1,000km – this test tells the reader whether in any sort of area test the country is overfull of refugees in comparison with others. The eu appears to be a very mixed place on all three of the criteria and none of them indicate that Mediterranean States as a whole host more refugees on any of the criteria than States away from that sea. Examining the first criteria – refugees to gdp, the higher the number of refugees per gdp (per person per capita) the more generous one can consider the State as regards hosting refugees. All 28 eu States are included in the table. The highest number of refugees to gdp is Germany at 15.13 which places it 30th in the world stakes. Thereafter, things drop off dramatically. France comes next at 6.11 placing it 47th in the world followed by the uk at 3.98 and 55th place. Sweden is placed at 2.22 and 61st place. Among the least generous countries in Europe are Estonia at 141th place in the world, followed by Slovenia at 132th and Slovakia at 120th. Taking the Mediterranean States only, Croatia has 0.04 refugees per gdp and ranks 115st in the world. Cyprus has 0.17 refugees per gdp which gives it a ranking of 91st. Greece has 0.08 refugees per gdp and a rank of 108th. Italy fares slightly better at 2.14 refugees per gdp and a place of 62nd worldwide. Malta has 0.31 refugees per gdp and ranks 84th. Spain has 0.15 refugees per gdp and ranks 94th in the world. Moving then to the next criterion used by the unhcr to understanding the comparative contribution to refugee protection of States, the number of refugees per 1,000 inhabitants, Malta has 19.41 refugees per 1,000 inhabitants with a world ranking of 9th. Then comes Sweden at 9.90 refugees per 1,000 inhabitants (a world ranking of 15th) the next most generous in the eu on this criterion. It is followed by Germany at 7.10 and a world ranking of 19th. Next comes Austria at 6.61 refugees per 1,000 inhabitants at 24th place. It is then followed by Luxembourg at 5.73 refugees per 1,000 inhabitants and 27th place worldwide. If one takes only the Mediterranean States, Croatia has 0.17 refugees per 1,000 inhabitants a place of 102nd in the world ranking. Cyprus has 3.29 r­ efugees

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per 1,000 inhabitants and a place of 41st worldwide. France has 3.45 refugees per 1,000 inhabitants placing it 40th. Greece has 0.19 refugees per 1,000 people and 79th place. Italy has 1.42 refugees per 1,000 people giving it a place of 68th. Spain has 0.10 refugees per 1,000 inhabitants which places it 108th in the world. On the final criterion which unhcr uses to understand generosity of States towards refugees – the spatial relationship, some of the small eu States appear most generous. Indeed, Malta holds 1st place in the world ranking with 26,351.44 refugees per 1,000km2. The Netherlands comes next with 2,048.51 refugees per 1,000km2 giving it 7th place in the world. Germany holds 10th place with 1,656.55 refugees per 1,000km2. Luxembourg is next, a small Member State in terms of territory 1,114.09 refugees per km2 and a world ranking of 13th. Once turning only to the Mediterranean states, Croatia has 12.82 refugees per 1,000km2 and a place of 91st. Cyprus has 35.69 and holds 31st place. France has 398.04 refugees per 1,000km2 and a world ranking of 29th. Greece has 15.87 and 86st place. Italy has 215.12 refugees per 1,000km2 which gives it a world ranking of 43rd. Spain has 8.93 refugees and 96st place. What does this rather indigestible list of statistics actually tell us about Member States’ willingness to host refugees? Among the most generous in terms of wealth, density of population and territory is Germany. Among the least generous are Croatia, Greece and Spain which fare badly on all the three criteria. Malta which is a Member State most vocal about the unfair nature of the ‘burden’ (as it calls it) of refugees which it shares, only appears actually to have a substantial share comparatively speaking in comparison to its territory and population, both of which are among the lowest in the eu as a whole. What is certain is that the Mediterranean States do not host substantially more refugees than other more northern and Eastern States on any of the three measures, with the sole exception of Malta. Even little Cyprus does not do particularly well on any of the three criteria in terms of generosity to refugees notwithstanding its own history as a country of origin of refugees only just over 40 years ago (counting back from 2014). 5

How Do Asylum-Seekers Arriving by Sea in the Mediterranean Compare with Other People Arriving by Sea in the Mediterranean?

According to the Council data collection exercise for the first week of September 2009, there were a total of entries and exits at eu sea borders of 1,101,677. Over that week, taking only the entries of third country nationals by sea among the Mediterranean countries one has the following outcomes: State

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Entries: Cyprus 354 / France 21,096 / Greece 15,477 / Italy 8,838 / Malta 181 / Spain 71,378 / Total 117,224 (per week). This total includes both mandatory visa nationals and non-visa third country nationals and covers only one week. As these entries are all at sea ports of Mediterranean eu countries the assumption must be that they are arriving by boat, and having regard to the shipping patterns of the Mediterranean, most likely by scheduled ferries. According to news reports, in the first six months of 2014, about 40,000 third country nationals have been rescued by the Italian navy in its operation Mare Nostrum designed to save people who are at risk of drowning trying to cross the Mediterranean in small boats.28 Although the numbers are not consistent across the weeks, if one takes a rough division, this means about 1,600 people might be rescued a week. The question which these figures raise is why over 117,000 people can cross the Mediterranean to the eu a week safely and primarily by ferry yet a massive naval operation is required to save 1,600 people a week travelling in terrible conditions and unsafe craft. According to one ngo, the trip across the Mediterranean in one of these unseaworthy vessels can cost €2,000 per person.29 As mentioned above, a crossing at one of the shortest routes, from Morocco to Spain on a ferry costs about €35. Yet, according to the stories, wealthy people fly across the Mediterranean,30 poor people take the ferries but the poorest of all take extremely dangerous and expensive routes. According to Frontex, clandestine entries at sea border crossing points of the eu are very low. In 2010 the number was 242 and in 2013 it had risen to 599, the figure for the whole year. While the number of people who are identified as irregularly present in the eu has remained very stable over the past four years at around 350,000 few of these persons are detected at sea ports. In 2013 the number was 1,396 detections at such sea ports. The top five nationalities of people detected at irregularly present in the eu (not just at sea ports) were Syrians, Moroccans, Afghans, Albanians and Russians. At sea ports, the five main nationalities of persons refused admission to the eu were Albanians (1,901), Filipinos (743), Russians (649), Moroccans (471) and Turkish nationals (228).

28

29 30

N. Rayman, ‘Boat Migrants Risk Everything of a New Life in Europe’ The Time (20 June 2014) accessed 26 June 2014. European Community on Protection of Marine Life (ecop Marine), ‘Illegal Immigrants and Stowaways’ accessed 26 June 2014. Though a Ryanair flight from Marrakesh to Madrid can cost only €35.

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One can assume that the Filipino nationals are seafarers working on container ships who jump ship or otherwise miss their onward journey.31 One of the ways of entering the eu which concerns Member States exceedingly is the use of someone else’s travel documents or counterfeit documents. The eu has introduced very substantial mandatory security measures for eu passports and identity documents to prevent unauthorised use.32 The Visa Information System, a database of information about everyone who has applied for a Schengen visa includes fingerprints and the checking of fingerprints at border entry posts is being rolled out across the eu.33 The Eurodac database includes the fingerprints of all asylum-seekers in the eu.34 These databases are not cheap and their maintenance and use costs many millions of euro per year. Yet, according to Frontex, even with this massive increase in capacity to identify false document use, the number of people detected using false documents to enter the eu has remained low. In 2010 the number was 5,289 and in 2013 9,804. At sea borders the number of people detected using false documents seeking to enter the eu in 2013 was 615. The top five nationalities of people using false documents were Syrians (1,281), Albanians (1,044), Moroccans (619), Nigerians (482) and Ukrainians (347). The top five countries of issue of the documents used fraudulently were Greece (1,418), France (1,270), Italy (1,114), Spain (763) and Germany (588). By far the majority of fraudulent documents used were passports (5,251) though the other options according to the Frontex data are interesting as they include residence permits, stamps, id cards and visas. What conclusions can be drawn for this wealth of information about the eu’s Mediterranean sea borders? The first observation must be just what a busy place the Mediterranean is. There is a tremendous amount of traffic back and forth across the sea, from the north coast to the south cost and back again. This traffic is greatly facilitated by scheduled ferry routes, robust competition among a number of companies providing the ferry services which keep the prices low and the services varied and reliable. This movement of people in very substantial numbers back and forth across the Mediterranean appears to 31 32 33

34

N. Berg, J. Storgård and J. Lappalainen, ‘The Impact of Ship Crews on Maritime Safety’, Publications of the Centre for Maritime Studies, University of Turku A, 2013, 64. B. Srinivasan, ‘Security and Privacy in E-Passport Scheme Using Authentication Protocols and Multiple Biometrics Technology’ (2013) 3(1) ijcsbi 1–16. D. Bigo, et al. ‘Justice and Home Affairs Databases and a Smart Borders System at eu External Borders. An Evaluation of Current and Forthcoming Proposals’, ceps Paper in Liberty and Security No. 52/December 2012, 2012. L. Schuster, ‘Dublin ii and Eurodac: Examining the (Un)Intended (?) Consequences’ (2011) 18(3) Gender, Place and Culture 401–416.

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present no difficulties for eu border guards who appear to be easily able to deal with arrivals of full ferries at sea ports and to process entry rapidly. The number of people refused entry at the eu’s sea ports is very low even as a ­percentage of total numbers of refusal so entry which in total are only about 120,000 per year. The detection of use of fraudulent documents at eu sea ports is very low. In general, the Mediterranean as a place of extreme danger and risk is certainly not the picture which the information and statistics which we have from the eu agencies reveals. This is without even examining the available information about commercial shipping and fishing in the Mediterranean. The question then must be asked, why are a small number of people drowning in the Mediterranean? Why are these people paying huge amounts of money to unscrupulous middlemen to undertake highly dangerous trips? What has gone wrong in the system that these small numbers of people are so excluded from safety that they are reduced to such a position? 6 Conclusions At the outset of this chapter I posed four questions: what is the state of asylum in the eu; how do asylum-seekers fit into the wider picture of foreign nationals arriving in the eu; how do eu Member States care for asylum-seekers comparatively and how do asylum-seekers arriving in the eu countries on the Mediterranean sea compare with other people arriving also by sea. I have sought the answers to these questions in the official data and information available mainly from eu sources but also from the unhcr statistical information. All of the sources are public and easily available on line. The picture which emerges, however, is virtually unrecognizable when compared with the ‘official’ version of what is happening in the Mediterranean promoted by various news media around the world, a number of eu governments, notably Italy, and a number of eu institutions themselves. The projected image is one of massive humanitarian disaster, emergency, threat, pressures out of control and horrific exploitation. The images, almost always of the faces of many subSaharan Africans jumbled up together on boats of various sizes and types, creates a sense of urgency and also unease. The question which the viewer is invited to speculate about is: how many more of these people are out there trying to get in? But this question is entirely the wrong one if one takes seriously the data. A more appropriate question is how does such a comparatively tiny number of people come to be placed in such a terrible position when some many millions of other people cross the Mediterranean every week with no trouble? How are these people selected to be subjected to such horrible and

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humiliating treatment at such exorbitant prices when so many millions of other people cross the Mediterranean every week cheaply, quickly and in ­complete safety. The only common characteristic about these people who are subject to such horrible treatment seems to be a fear somewhere in the administrations of the eu Member States that they or at least some of them may need international protection.

chapter 3

Negotiating the Second Generation of the Common European Asylum System Instruments: A Chronicle Patricia Van de Peer* 1

The First Generation of Union Asylum Legislation

By the end of 2005 the Council concluded the adoption of a first set of Community Asylum legislation, according to Article 63(1) of the Treaty of Amsterdam, defining the first Union measures governing asylum, in particular standards regarding the reception of asylum seekers, the qualification as refugees and the procedures for granting or withdrawing refugee status and the criteria for determining the Member State responsible for considering an asylum application. These Instruments were adopted under the unanimity rule in Council and requested only consultation of the European Parliament at that stage.1 The set of common rules agreed were minimum standards. 2

The Second Generation: General Context and Timing

According to Article 67(5) of the Treaty of Amsterdam, the second generation of Union Asylum legislation was to be continued under co-decision with the European Parliament. Therefore the European Parliament became officially co-legislator in asylum matters as from the first of December 2005. The new rules were to become an upgrade of the existing rules, establishing a common policy on asylum and subsidiary protection aiming at uniform statuses and common procedures for the asylum systems all over the Union. The deadline for completing this second generation of Union Asylum law, known as the

* Administrator, Secretariat, Committee on Civil Liberties, Justice and Home Affairs (libe Committee), European Parliament. The opinions expressed in this article are the author’s own and do not necessarily reflect the views of the European Parliament. 1 See Consolidated version of the Treaty establishing the European Community, oj C 340, 10 November 1997, Article 67(5). Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, oj L 326/13, 13 December 2005.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004308664_004

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Common European Asylum System (ceas), was initially set for end 2010.2 Due to the entry into force of the Lisbon Treaty, the legal framework in asylum policy was modified and the legal bases were to be adapted accordingly. Therefore, and due to the slow process of the negotiations, the deadline for the completion of the second phase of the ceas was rescheduled to the end of 2012.3 The Commission proposals for the second generation of Union asylum legislation were issued between 3.12.2008 and 21.10.2009. The four first proposals arrived just before the end of the European Parliament’s sixth legislature: 1. for the Dublin Regulation, on 3 December 2008; 2. for the Eurodac Regulation, on 3 December 2008; 3. for the Reception Conditions’ Directive, on 3 December 2008 and 4. for the European Asylum Support Office (easo) Regulation, on 18 February 2009. Within the European Parliament, the Rapporteurs and their negotiating teams were keen to finalise the first reading position of their Institution before the end of their term, as this allowed them to leave their print on the follow-up during the next legislative term. Rule 229 of the Rules of Procedures of the European Parliament4 indeed establishes that any Parliament’s unfinished business may lapse. Adopted European Parliament’s first reading positions however are resumed by the Parliament of the next parliamentary term. The European Parliament managed to have its first reading positions on the four instruments for which the Commission issued its proposals at the end of 2008 adopted during the last Plenary of the sixth legislature, on 7 May 2009. 2 The Hague Programme: Strengthening Freedom, Security and Justice in the European Union as agreed by the European Council on 5 November 2004, oj C 53/1, 3 March 2005. 3 European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Policy Plan on Asylum, an Integrated Approach to Protection across the eu, com(2008)360, 17 June 2008. 4 Rules of Procedure of the European Parliament, 8th Parliamentary Term, April 2015 . Rule 229: Unfinished business. At the end of the last part-session before elections, all Parliament’s unfinished business shall be deemed to have lapsed, subject to the provisions of the second paragraph. At the beginning of each parliamentary term, the Conference of Presidents shall take a decision on reasoned requests from parliamentary committees and other institutions to resume or continue the consideration of such matters. These provisions shall not apply to petitions and communications that do not require a decision.

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For the Committee of Civil Liberties, Justice and Home Affairs (libe-­ Committee), it was rather exceptional to adopt first reading positions without trying to negotiate an early first reading agreement with the Council. Until that very moment the libe-Committee had always adopted the strategy to avoid sending out its first reading position to the stage of Plenary and then to be politically locked in the provision of Article 294, paragraphs 4 and 5 of the Treaty on the Functioning of the European Union (tfeu) in which no time constraints exist for the Council to adopt its first reading position. It traditionally aimed at politically endorsing its position at the level of the Committee and starting informal trilogues with the Council in order to pre-agree on the text with the Council. This then allowed the Committee to formally adopt its first reading position, reflecting immediately the text agreed among the colegislators. When the European Parliament’s first reading position in such a case is transmitted to Council they formally copy it as their first reading position and approve it as it is the pre-agreed product after negotiations.5 In the case of these four Asylum files however, the issuing dates of the legislative proposals at the end of the parliamentary legislature led to this new situation, in which the first reading in the European Parliament was formally concluded because there was not enough time to start these informal negotiations in order to issue the formal First Reading position as a pre-negotiated agreement between the co-legislators. Also, Rule 229 would possibly kick in if the next term Parliament Members would decide so. 3

The Inter-institutional Negotiations: Starting Off

Under the European Parliament’s new seventh legislative term, the co-legislators soon found a compromise on the establishment of the European Asylum Support Office. The establishment of this Agency was politically uncontroversial, as it focused on operational cooperation, with no implications on any national legislation and no potential danger for sovereignty connotations. The Rapporteur pre-negotiated the Council’s first reading position between 30 Sep­tember 2009 and 5 November 2009. The Position of the Parliament was adopted by the Plenary on 18 May 2010. Negotiations with the Council started on 1 October 5 Joint declaration on practical arrangements for the codecision procedure (Article 251 of the ec Treaty) (oj C 145, 30 June 2007) 5 and in particular point 14 for the early first reading agreement and point 18 for the early second reading agreement. This declaration complements the Inter-institutional agreement on better law-making (oj C 321, 31 December 2003, 1).

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2009, and after four trilogues, the libe-Committee politically endorsed the agreement reached with Council on 12 November 2009. It was eventually approved by Plenary on 18 May 2010 and published in the Official Journal on 29 May 2010. The same Rapporteur then took up the negotiations on the Qualification Directive. The Commission Proposal was issued on 23 October 2009, and the libe-Committee again according to its usual practices, endorsed, in an orientation vote on 1 February 2011 its negotiation position towards the Council and the Commission. This practice aimed at, before officially adopting a draft first reading position at Committee level, adopting that position on an informal but politically fully endorsed level. This informal position then allowed the Rapporteur to start the trilogues with the Council Presidency once also in the Council the negotiation-mandate was ready. The Council entered into negotiations with the Parliament on 5 April 2011 and co-legislators politically agreed on the compromise-text before the summer of 2011. This text was adopted as the European Parliament’s draft first reading position in the libe Committee on 12 July 2011. During these negotiations, the Rapporteurs involved were aware that quite a lot of crucial concepts proper to all the other future legislative asylum instruments were being decided upon. The Member States tended to be very restrictive in accepting any changes on their position. The new experience of having to deal with a co-legislator in this area was very difficult to handle for Member States and they approached with reluctance the position of the European Parliament. The Rapporteurs and their teams decided to set up within the libe-­ Committee a working Group on Asylum matters, composed by all rapporteurs and shadow rapporteurs of the ceas-Instruments.6 Within that Group, Members exchanged and consulted on the positions to be taken on horizontal concepts, such as, at that stage, the definition of family members, the concept of best interests of the child, vulnerability etc. This working group on Asylum matters proved to be very useful and strengthened the position of the Rapporteur on the Qualification Directive, herself of a political group with no major weight in decision making, in her attempts to  obtain politically fully carried solutions for these delicate and between co-­legislators highly controversial matters. This exercise was done with particular attention to optimise any possibility for sealing the Parliament’s political c­ oncerns additionally in Recitals as a last resort, when the ­negotiations

6 The negotiating teams for the Recasts Qualification Directive, Dublin Regulation, Recep­ tion  Conditions’ Directive, Asylum Procedures Directive, the Eurodac Regulation and the Amendment to the European Refugee Fund, establishing a Union Resettlement Programme.

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with the Council eventually excluded any changes in the enacting part of the text.7 Once political agreement on the Recast of the Qualification Directive was reached in July 2011, it took the co-legislators all the same until 27 October 2011 to adopt the text in Plenary, as a general inter-institutional issue of disagreement on the use of correlation tables blocked the final adoption of the text. After formal adoption in the Council on 24 November 2011, publication in the Official Journal followed on 20 December 2011. 4

The Inter-institutional Negotiations in Deadlock

After the adoption of this Directive however, further progress seemed to be impossible, as the Member States had little appetite to further recast the existing acquis. The European Parliament was more keen to continue the work but was politically stuck, due to the (non-)dynamics of Article 294 tfeu, that made Parliament fully depending on the willingness of the Council to further proceed with its position and to start up negotiations. The Rapporteurs and the different Presidencies kept in contact on the pending Instruments, but, although the deadline to set-up a common European Asylum System by the end of 2012 was approaching steadily, no real progress at the Council side was made. The main political difficulty was met in the Recast proposal for the Dublin Regulation. Furthermore, issues of disagreement on the possible access for law enforcement authorities to data to be collected on the basis of the Recast proposal for the Eurodac Regulation and concerns on the Commission proposals in the Reception Conditions’ and Procedures’ Directive had swept away any immediate willingness for progress on these files within the Council. The Dublin proposal8 specifically provided for a temporary suspension of transfers in case of a particularly urgent situation placing an exceptionally heavy burden on a Member State’s reception capacity, asylum system or 7 See for example: 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), oj L 337, 20 December 2011, Recital 45 to Article 29(2) on Social welfare; Recital 18 on elements to be taken into account for assessing the best interests of the child; Article 8(1) and Recital 27 on the internal flight alternative. 8 European Commission, Proposal for a Regulation of the European Parliament and of the Council Establishing the Criteria and Mechanisms for Determining the Member State Respon­ sible for Examining an Application for International Protection Lodged in one of the Member

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i­nfrastructure, and when the transfer of applicants could add to that burden. Such a suspension could be initiated by a request from the Commission, the Member State under burden or any other Member State, and depended on a final decision of the Commission, under reservation of a Council right to change this decision acting by a qualified majority. The suspension could be for a period of up to six months, and be extended for another six months in case of persisting problems. This temporary suspension provision received strong political support in the European Parliament,9 which amended the procedure as provided for in the Commission Proposal and added an additional reason to be included in  the Commission decision to suspend. The list of justifications for the Commission suspension decision as provided for in the Commission proposal, should in particular include an examination of all the relevant circumstances prevailing in the Member State to which transfers could be suspended and of the potential impact of the suspension of transfers on the other Member States and any particular conditions attached to such suspension. The European Parliament additionally specified these conditions by requesting a programme with effective and timely steps to remedy the situation that led to the temporary suspension of transfers: the Commission would have needed to provide for ‘indicia of measures, benchmarks and timetables to be established in order to assess progress toward resolution of the relevant circumstances prevailing in the Member State to which transfers could be suspended’.10 The European Parliament further called for a new legislative initiative to be put in place by the end of 2011, to replace in the longer term the temporary suspension provision in the Dublin Regulation. The new legislation should first of all provide effective support to those Member States which are faced with specific and disproportionate pressures on their national systems due, in particular, to their geographical or demographic situation. Second, it should contain in particular provisions for the secondment of officials from other Member States, under the aegis of the European Asylum Support Office. Third, it should provide for a scheme to reallocate beneficiaries of international protection from Member States which are faced with specific and disproportionate

9 10

States by a Third-Country National or a Stateless Person, com(2008)820, 3 December 2008, Article 32. European Parliament, European Parliament first reading position of 7 May 2009, P6_TC1COD (2008) 0243, oj C 2012 E/52, 5 August 2010, Article 32, 371. Ibid Article 33(4)(e).

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­ ressures to other Member States, in consultation with the Office of the United p Nations High Commissioner for Refugees, while ensuring that the reallocation follows non-discretionary, transparent and unequivocal rules. Once this new instrument would be in place, the temporary suspension provision in the Dublin Regulation could cease to apply. In that context, the European Parliament’s first reading position suggested to specifically include in the future evaluation of the Dublin Regulation the review of the application of the temporary suspension provision. In its evaluation report, the Commission should assess whether there would be a justified need to extend the application of the temporary suspension mechanism beyond 31 December 2011. If the Commission would consider this extension in time appropriate, it should submit a new legislative proposal for such an extension. The European Parliament’s position further suggests a periodical review of the progress toward improving the long-term development and harmonisation of the Common European Asylum System and the degree to which solidarity measures and the suspension mechanism are facilitating that progress.11 The Member States on the other side considered that the Dublin system is and remains the cornerstone of the Common European Asylum System12 and that any derogation to this system, such as a temporary suspension of transfers, was absolutely unacceptable. These fundamentally different conceptual approaches towards possibly occurring particularly urgent situations in a Member State placing an exceptionally heavy burden on its reception capacities, asylum system or infrastructure put the timely establishment of the Common European Asylum System in danger. The Council’s political unwillingness to realistically provide for rules taking care of exceptional situations in which Dublin transfers put the fundamental rights of asylum seekers at stake was the main reason for the deadlock in the negotiations. Discontinuation in the other pending instruments was equally conditioned by this point. However, what the co-legislator did not manage to do, the Courts eventually did in the Ruling mss v Belgium and Greece of 21 January 2011 by the European Court of Human Rights13 and followed in other cases including from the European Court of Justice: they established the rules on a de facto suspension of transfers…

11 12 13

Ibid Recital 27. This approach was later in the negotiations reconfirmed by the European Council in its Conclusions, euco 23/1/11 rev 1, 24 June 2011. mss v Belgium and Greece Appl no 30696/09 (ECtHR, 21 January 2011).

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The Inter-institutional Negotiations Back on Track

At the start of the Polish Presidency, this evolution, the approaching timeconstraint of 31 December 2012 for establishing the ceas and innovative thinking towards possible compromises, became the key for fruitful exchanges between the Council Presidency and the ep-rapporteur in consultation with her negotiating team. The idea of an early warning mechanism, also known in other areas of Union law, was introduced by the Council Presidency. The initial steps for the early warning mechanism were discussed between the Council Presidency and the rapporteur on the Dublin Regulation Recast, who consulted her negotiating team on an ongoing basis. The basic idea was that if a well-functioning early warning system was in place, any exceptional burden would never occur on an urgent basis, as Member States would be fully aware of and therefore prepared for new flows in time. And so, the need for suspension of transfers would never occur. The reopening of negotiations in general however was very much boosted by the interactions within the informal inter-institutional contact group on Asylum, established following a suggestion launched by the libe-Chair during the Informal Justice and Home Affairs Council in Sopot in July 2011. This group was composed on the Council side, of a representation of the trio-Presidencies, on the European Parliament side, of the libe-Chair and all rapporteurs and shadow rapporteurs of the ceas-package14 and on the Commission side of the Commissioner or senior representatives of the Home Affairs Unit. The European Parliament representation was indeed the same Group of Members that was already collaborating in the Asylum Working Group within the libe-Committee. Members shared the same aim: reopening the negotiations, obtaining the highest standards possible taking as a starting point the ep-Positions and ensuring that the common concepts or standards that were agreed in the first-generation Instruments were certainly not lowered down in any further negotiations on still pending Instruments. As from September 2011, four meetings of this informal inter-institutional contact group took place in 2011 and allowed for information sharing in real time, directly between the two co-legislators. In this way, any thoughts for solutions were tested at a large playing field in each of the Institutions, and the 14

The negotiating teams for the Recasts Qualification Directive, Dublin Regulation, Reception Conditions’ Directive, Asylum Procedures’ Directive, the Eurodac Regulation and the Amendment to the European Refugee Fund, establishing a Union Resettlement Programme.

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agreed solutions would be carried at the long term as the representatives of each of the co-legislators guaranteed common institutional ownership of the solution. This informal setting had the merit of enhancing trust and openness between co-legislators, both new15 in this common co-decision area. Moreover, since the deadlock in the negotiations on the Dublin Regulation, the Reception Conditions’ Directive, the Eurodac Regulation and the Union Resettlement Programme, these meetings were the first between the Institu­ tions aiming at the accomplishment of the Package in all its elements. After having resolved the stalemate in the negotiations on the Recast of the Dublin Regulation with the establishment of the early warning, preparedness and crisis management mechanism, horizontal issues such as detention, the right to an effective remedy, identification of vulnerable applicants etc. also became issues of exchange between the co-legislators in that setting. It facilitated the understanding of the political state of play in each Institution, especially as the informal setting differentiated from the usual trilogue-settings, where every exchange was conditioned by a formal mandate and a formal reporting back. 6

The Inter-institutional Negotiations: Continuation

On the first of June 2011, the Commission issued its amended proposals for the Recasts of the Reception Conditions’ Directive and for the Asylum Procedures’ Directive. As these amended proposals did not intend to introduce any new issues in these instruments, but rather to take on board some of the concerns expressed in the Council’s exchanges on these Instruments at earlier stages as well as some of the concerns expressed in the First Reading Positions of the European Parliament, the corresponding negotiating teams within the European Parlia­ ment decided not to adopt new first reading positions, and considered that their earlier Positions continued to be valid as they covered already the epPosition on the issues at stake. Only a limited amount of newly introduced points by the Commission’s amended proposals were commented in an informal way by observations of the corresponding negotiating teams and, after political endorsement by an orientation vote at the level of the libe-Committee transmitted by the libe-Chair to the Presidency for information. 15

Co-decision became a rule as from December 2005, after a first round of Union Asylum legislation voted in Council under the unanimity rule, and with consultative powers for the European Parliament.

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This was a strategic choice of the libe-Committee as the full procedure from draft report, through amendments to final position at the European Parliament-side, would be very time-consuming, while the European Parlia­ ment Position de facto already existed. It allowed keeping the pressure and duty on the Council to continue the negotiations with the view of establishing its first reading position or, if the Council’s first reading position could be ­pre-negotiated with the Parliament, a Council mandate for starting these negotiations. The negotiations on the Reception conditions’ Directive and the Dublin Regulation were finalised in September 2012. For the Dublin Recast however the delegated and implementing acts had not been part of the initial negotiating mandate of the Council, and also on these implementing acts another series of technical negotiating rounds started off, under the supervision of the Members involved and the strong political general guidance-notes of the Conference of Presidents. The final text agreed was politically endorsed in the libe-Committee on 27 November 2012. Immediately at the beginning of the Danish Presidency, the Union Resettle­ ment Programme was gaining its momentum. This Instrument, apparently of a purely financial nature, had always been a full part of the ceas-package in the European Parliament’s approach, as it embodies part of its external dimension. The high interest and concern of the libe-Members for a resettlement programme16 has certainly part of its origin in the multiple delegations of the Members of inter alia the Committee of Civil Liberties, Justice and Home Affairs to refugee camps,17 and in the immediate and concrete solution this concept offers to vulnerable refugees without other perspectives for a durable solution. By setting up a Joint eu Resettlement Programme, as part of the European Refugee Fund for its last year of existence, namely 2013, the European Parlia­ ment managed to put in place specific financial incentives for Member States to better promote resettlement in the Union. It also made sure that Member States that had never been resettling before, and decided to take up their share in resettling, received more important financial support compared to existing resettling Member States. This European Parliament achievement aimed at outweighing the higher cost of setting-up a brand new system with specific structures and proceedings. In the European Parliament, this proposal, part of

16 17

See European Parliament on the establishment Resolution of a joint eu resettlement programme of 18 May 2010, 2009/2240(ini), oj C 161E, 31 May 2011, 1. libe delegations to Syria, March 2010; Mali, May 2010; Tunisia, June 2011 and Jordan, February 2013.

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the external dimension of the ceas and originally based on Article 63 (2)(b) ec Treaty, was a key priority which received unanimous political support (adoption in Plenary on 18 May 2010 at first reading stage with a vote of 512 votes in favour, 81 against and 7 abstentions).18 The initial Commission proposal dated from 2 October 2009.19 The European Parliament adopted its first reading opinion on 18 May 2010.20 The file was sent then for first reading to the Council. The Council did not consider it as a priority and therefore the file remained blocked with them. The slowing down of proceedings was mainly due to two reasons. The Council did not really see the need and relevance of setting-up a Union resettlement programme, as resettlement was considered a matter of purely national competence and any involvement of the Union, even under the form of financial incentives was not really much welcomed by the majority of Member States. A second issue of principled disagreement between the Council and the European Parliament was the use of an implementing versus a delegated act for the annual decision on the specific common Union resettlement priorities relating to the list of countries or regions which had been identified in the unhcr annual resettlement forecast and where common action by the Union would have a significant impact on addressing protection needs. The European Parliament was convinced that this decision implied a strategic choice, which should be coherent with e.g. the Union’s external policies and therefore would have to be taken under the form of a delegated act, allowing a final scrutiny by the co-legislators. The Commission and the Council considered at that stage that the financial instruments should not contain delegated acts, as they would endanger the strict deadlines inherent to budgetary procedures. Both Institutions further

18

19

20

As the final text was an early second reading agreement, at the moment of the final adoption in second reading, the Council text was adopted without amendments, and therefore, there was no formal vote in Plenary but, at the beginning of the usual voting session, the President declared the text as deemed to have been adopted according to Article 294 (7)(a) tfeu. European Commission, Proposal for a Decision of the European Parliament and of the Council of Amending Decision No. 573/2007/EC Establishing the European Refugee Fund for the Period 2008 to 2013 as Part of the General Programme ‘Solidarity and Management of  Migration Flows’ and Repealing Council Decision 2004/904/EC, COM/2009/0456 final, 2 September 2009. European Parliament, Position of the European Parliament of 18 May 2010, oj C 161 E, 31 May 2011, 161.

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argued that the choice of the priority regions was a mere executing act, and they therefore stuck to the form of an implementing act.21 The Danish Presidency took the Joint eu Resettlement Programme project immediately forward in January 2012 and Denmark, as a pilot Member State in resettlement managed to give a strong boost to the decision-making process in the Council. The inter-institutional issue of delegated acts was solved by introducing the specific common Union resettlement priorities in the legislative act itself, and as by then the European Refugee Fund had only one more year to go, therefore no further changes (and thus no implementing or delegated acts) had to be envisaged. At the concluding stage of these inter-institutional negotiations, it became clear that the Council, in its first reading position22 intended to change the original legal basis from Article 63(2)(b) tec23 into Article 78(2)(g) tfeu,24 while the European Parliament had in its first reading Position referred to both Articles 78(2)(g) and 80 tfeu as a legal basis. This was again a core point for the European Parliament, as solidarity, reflected in Article 80 tfeu is the Union engine in policies on border checks, asylum and immigration. In this way, another important inter-institutional issue was created, where both Institutions seemed to remain in an unsolvable disagreement: in the Council Article 80 tfeu was not considered as a legal basis, whereas in the European Parliament, the libe-Committee politically supported the use of this Article as an additional legal basis, building also on the Commission Omnibus Communication on consequences of the entry into force of the Treaty of Lisbon for ongoing interinstitutional decision-making procedures.25 This Communication transposed 21

22

23 24 25

Note that in the new Asylum, Migration and Integration Fund (oj 20 May 2014, L 150/168), the decision on the priority regions is made in the legislative act and any subsequent changes are to be done by delegated acts. Position at first reading with a view to the adoption of a Decision of the European Parliament and of the Council amending Decision No. 573/2007/EC establishing the European Refugee Fund for the period 2008 to 2013 as part of the General programme ‘Solidarity and Management of Migration Flows’ and repealing Council Decision 2004/904/EC, COM/2012/0110 final, 8 March 2012. Consolidated version of the Treaty Establishing the European Community, oj C 325, 24 December 2002, Article 63(2)(b). tfeu Article 78(2)(g). European Commission, Communication from the Commission to the European Parliament and the Council on the Consequences of the Entry into Force of the Treaty of Lisbon for Ongoing Interinstitutional Decision-Making Procedures, com(2009)665, 2 December 2009.

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the Articles of the old legal basis of the Commission proposals that were issued before the entry into force of the Lisbon Treaty into the new corresponding Articles in the new Treaties after Lisbon. In that Communication the new legal basis for this Decision was Articles 78 and Article 80 tfeu. At this stage of the negotiations, at a moment where the co-legislators had reached an agreement thirty months after the original Commission proposal was issued, the European Parliament opted for a pragmatic approach: any further delay of the adoption would definitely have prevented the establishment of a Joint eu resettlement scheme under the European Refugee Fund – to which the Commission proposal was an amendment – as this Fund was to expire at the end of 2013. The deadline for adoption became thus urgent and the European Parliament agreed to have Article 78 tfeu as the sole legal basis, with a quote of Article 80 tfeu in a Recital. This choice was justified as being without any prejudice to the future use of Article 80 tfeu as a legal basis in political statements, annexed to the Resolution of Parliament in second reading.26 As the negotiations in all the files of the ceas-package now moved forward in a satisfactory way, the Commission eventually agreed to issue the new Recast proposal for the Eurodac Regulation. In Eurodac, the co-legislators indeed were depending on a new Commission proposal, as due to the entering into force of the Lisbon Treaty the old legal bases had become obsolete and a new legislative initiative was necessary in order to recast the existing Regulation. This new Proposal of 30 May 2012 gave in to the Council’s wish to give law enforcement authorities access to Eurodac data, an issue largely controversial in European Parliament’s earlier position. The co-legislators started to negotiate this moderate access possibility, aiming at an early first reading agreement. Negotiations on the Asylum Procedures’ Directive and on Eurodac progressed simultaneously, and it was clear from the facts that the Council would not enter into the final agreement stage27 of the Asylum Procedures’ Directive, as long as for the Eurodac Regulation there was no perspective for a satisfactory 26 27

European Parliament, Position of the European Parliament, P7_TA(2012)0104, 29 March 2012. In the Procedures’ Directive (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, oj L 180, 29 June 2013) the last point of disagreement related to applicants in need of special procedural guarantees (Article 24(4)) and guarantees for unaccompanied minors (Article 25(6)).

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outcome that provided the law enforcement authorities with access to the data gathered by the Eurodac system. 7

Conclusion of the Second Generation of the Common European Asylum System Legislation

Even the other files which were politically ready for adoption all remained pending at the level of the Council as the Institutions could not agree on a technical solution for solving the cross-references among the different Instruments of the Package. This resulted in the situation that the pending Instruments (Reception Conditions’ Directive, Dublin Regulation, Asylum Procedures’ Directive and the Eurodac Regulation) were all formally adopted by Council on 6 June 2013 and in the European Parliament on 12 June 2013.28 The acts were signed on 26 June 2013 and published in the Official Journal on 29 June 2013.

Common European Asylum System – Time Table



Early Second Reading Agreements (Prenegotiated First Reading Council Positions) 1. easo: Proposal for a Regulation of the European Parliament and of the Council establishing a European Asylum Support Office. com(2009)0066 – 2009/0027(cod). Rapporteur: Jean Lambert (Verts/ale). 2. Resettlement: Proposal for a Decision of the European Parliament and of the Council of amending Decision No. 573/2007/EC establishing the European Refugee Fund for the period 2008 to 2013 as part of the General programme ‘Solidarity and Management of Migration Flows’ and repealing Council Decision 2004/904/EC. com(2009)0456 – 2009/0127(cod). Rapporteur: Rui Tavares (Verts/ale). 3. Reception Conditions Directive (rcd): Proposal for a Directive of the European Parliament and of the Council laying down minimum standards for the reception of asylum seekers. com(2008)0815 and com(2011)0320 – 2008/0244(cod). Rapporteur: Antonio Masip Hildalgo (S&D).

28

Reference to the common press conference by all ceas-Rapporteurs on 12 June 2013, C. Wikström, A. Masip Hidalgo, S. Guillaume, M.L. Macovei, R. Tavares and J. Lambert, available at .

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4. Dublin: 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. com(2008)0820 – 2008/0243(cod). Rapporteur Ms Cecilia Wikstrom (alde). 5. Asylum Procedures Directive (apd): Proposal for a Directive of the European Parliament and of the Council on minimum standards on procedures in Member States for granting and withdrawing international protection. com(2009)0554 and com(2011)0319 – 2009/0165(cod). Rapporteur: Sylvie Guillaume (S&D). easo 2009/0027

Resettlement rcd 2009/0127 2008/0244

Dublin 2008/0243

apd 2009/0165

Com proposal

18/02/2009 com(2009) 0066

02/09/2009 com(2009) 0456

03/12/2008 com(2008) 0815

03/12/2008 com(2008) 0820

21/10/2009 com(2009) 0554

Draft report in Libe

16/03/2009

26/02/2010

03/03/2009

02/03/2009

15/12/2010

Amendments tabled in Libe

02/04/2009

05/03/2010

30/03/2009

03/04/2009

24/01/2011

Adoption report in Libe

27/4/2009 (33:+; 1:−; 0:0)

27/4/2010 (40:+; 2:−; 0:0)

27/4/2009 (33:+; 1:−; 1:0)

27/4/2009 17/3/2011 (30:+, 0:−; 0:0) (28:+, 22:−, 0:0)

First reading ep position

18/05/2010 07/05/2009 07/05/2009 (465:+; 47:−; (512:+; 81:−; 7:0) (450:+; 69:−; 19:0 for act – 431:+; 18:0 for act – 69:−; 43:0 for 467:+; 42:−; 18:0 for resolution) resolution) (oj 2010/C 212E/51, p. 348)

07/05/2009 (429:+; 60:−; 54:0 for act – 398:+; 56:−; 65:0 for resolution) (oj 2010/C 212E/ 52, p. 370)

06/04/2011 (326:+; 304:−; 52:0 for act – 314:+; 306:−; 48:0 for resolution)

Amended com proposal

–

cod

Council mandate for negotiating

–

01/06/2011 (COM/2011/ 0320)

–

01/06/2011 (com(2011) 0319)

03/12/2011

21/03/2012

04/04/2012

06/06/2012

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Van De Peer

cod

easo 2009/0027

Resettlement rcd 2009/0127 2008/0244

Dublin 2008/0243

apd 2009/0165

1st trilogue

1/10/2009

08/05/2012

08/05/2012

28/06/2012

2nd trilogue

8/10/2009

30/05/2012

22/05/2012

25/09/2012

3rd trilogue

22/10/2009

05/06/2012

05/06/2012

16/10/2012

4th trilogue

5/11/2009

19/06/2012

19/06/2012

13/11/2012

5th trilogue

–

27/06/2012

14/11/2012

28/11/2012

6th trilogue

–

–

04/12/2012

7th trilogue

–

–

17/12/2012

8th trilogue

–

–

21/03/2013

Orientation vote in Libe on agreement: 19/09/2012 (51:+; 4:−; 3:0)

Orientation vote in Libe on agreement (without comitology provisions): 19/09/2012 Orientation vote in Libe on the whole text: 27/11/2012

Orientation vote in libe on agreement: 24/04/2013

25-26/10/2012

18/7/2012 by 13/5/2013 by Council Coreper (agreement without comitology provisions) by Coreper on 27/11/2012 and by Council on 6/12/2012 on the whole text

12/11/2009 Political endorsement in libe of the prenegotiated agreed text

09/02/2012

Political agreement 20/11/2009 by 22/2/2012 by endorsed in Council Coreper Coreper

71

CEAS Resettlement rcd 2009/0127 2008/0244

Dublin 2008/0243

apd 2009/0165

Prenegotiated (after ll:25Council first reading 26-2-2010 by position Council)

08/03/2012 by Council

06/6/2013 by Council (oj C 179E , 25.6.2013, p. 1)

06/06/2013 by Council (oj C 177E, 22.06.2013, p. 1)

06/06/2013 by Council (oj C 179E, 25.6.2013, p. 27)

Vote in Libe on recommendation second reading

8/4/2010 (41:+; 4:−; 0:1)

21/3/2012 (44:+; 3:−; 0:0)

10/6/2013 (40:+; 9:−; 1:0)

10/6/2013 10/6/2013 (32:+; 9:−; 9:0) (40:+; 4:−; 6:0)

Vote in second reading Plenary

18/05/2010 (declared approved – see Article 294(7) (a) tfeu)

29/03/2012 (declared approved – see Article 294(7)(a) tfeu)

12/06/2013 (declared approved – see Article 294(7)(a) tfeu)

12/06/2013 (declared approved – see Article 294 (7)(a) tfeu)

12/06/2013 (declared approved – see Article 294 (7)(a) tfeu)

Final act signed

19/05/2010

29/3/2012

26/06/2013

26/06/2013

26/06/2013

oj Publication

Regulation (eu) 439/2010 oj L 132, p. 11 29/05/2010

Decision 281/2012/EU oj L 92, p. 1 30/03/2012

Directive 2013/33/EU oj L 180, p. 96 29/06/2013

Regulation (eu) 604/2013 oj L 180, p. 31 29/06/2013

Directive 2013/32/EU oj L 180, p. 60 29/06/2013

cod



easo 2009/0027

Early First Reading Agreements (Prenegotiated First Reading European Parliament Positions) 1. Qualification Directive (qd): 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). com(2009)0551 – 2009/0164(cod) – Rapporteur: Jean Lambert (Verts/ale). 2. Eurodac: Proposal for a Regulation of the European Parliament and of the Council concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation (ec) 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

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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). com(2008)0825 – 2008/0242(cod) – Rapporteur: Monica Luisa Macovei (epp). qd 2009/0164

Eurodac 2008/0242

Com proposal

21/10/2009 com(2009)0551

03/12/2008

Draft report in Libe

11/10/2010

04/03/2009

Amendments in Libe

26/10/2010

30/03/2009

Orientation vote in Libe

01/02/2011

03/02/2011

First reading ep position in Plenary

–

07/05/2009

Amended com proposal

–

1st modified proposal: 10/09/2009 (com(2009)342) 2nd modified proposal: 11/10/2010 (com(2010)555) 3rd modified proposal: 30/05/2012 (com(2012)254)

Council mandate for negotiating

17/3/2011

10/10/2012

cod

Vote in libe

17/12/2012

1st trilogue

5/4/2011

18/12/2012

2nd trilogue

19/4/2011

07/02/2013

3rd trilogue

4/5/2011

06/03/2013

4th trilogue

26/5/2011

21/03/2013

5th trilogue

14/6/2011

6th trilogue

21/6/2011

73

CEAS

cod

qd 2009/0164

Vote in Libe

12/7/2011 (except for correlation tables) (46:+; 3:−; 0:1)

ep first reading position

27/10/2011 (with reference to explanatory documents) (476:+; 24:−; 73:0)

Eurodac 2008/0242

12/06/2013

Council first reading position 24/11/2011

20/06/2013

Final act signed

13/12/2011

26/06/2013

oj Publication

Directive 2011/95 oj L 337, p. 9 20/12/2011

Regulation (eu) 603/2013 oj L 180, p. 1 29/06/2013

chapter 4

A Common European Asylum System under Construction: Remaining Gaps, Challenges and Next Steps Kris Pollet* 1 Introduction The adoption of the Recast Dublin1 and Eurodac Regulations,2 the Recast Asylum Procedures Directive3 and the Recast Reception Conditions Directive4 has marked the end of a long and cumbersome second phase of legislative harmoni­ sation in the field of asylum. Upon the adoption of these instruments, European Union (eu) institutions have claimed that now the Common European Asylum System (ceas) is in place and labelled it as a historic achievement.5 * Senior Legal and Policy Officer, European Council on Refugees and Exiles (ecre). This con­ tribution was finalised in November 2014. 1 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) (hereafter Recast Dublin Regulation), oj 2013 L 180/31, 29 June 2013. 2 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 applica­ tion of Regulation (eu) No. 604/2013 establishing the criteria and mechanisms for determin­ ing 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 authori­ ties 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) (hereafter Recast Eurodac Regulation), oj 2013 L 180/1, 29 June 2013. 3 Directive 2013/32/eu of the European Parliament and of the Council of 26 June 2013 on com­ mon procedures for granting and withdrawing international protection (recast) (hereafter Recast Asylum Procedures Directive), oj 2013 L 180/60, 29 June 2013. 4 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) (hereaf­ ter Recast Reception Conditions Directive), oj 2013 L 180/96, 29 June 2013. 5 European Commission, Commissioner Malmström Welcomes the European Parliament’s Vote on the Common European Asylum System, memo Strasbourg, 12 June 2013.

© koninklijke brill nv, leiden, ��� 6 | doi 10.1163/9789004308664_005

A Common European Asylum System under construction

75

Consequently, the eu institutions’ mantra became that the eu is in an ‘implementation mode’ and the magic mix of proper transposition, effective monitoring of the implementation of the acquis, uniform interpretation of the acquis by the Court of Justice of the European Union (cjeu) and concrete soli­ darity between eu Member States is the key to successful harmonisation. Considering the ceas as a mission accomplished is obviously wishful think­ ing. While the legal framework for the eu’s common asylum policy has cer­ tainly been considerably strengthened, a number of protection gaps remain and fur­ther  legislative initiatives will be needed if a common policy as called for in Article 78 of the Treaty on the Functioning of the European Union (tfeu) is ever to materialise. Moreover, fifteen years of harmonisation have not prevented that huge dis­ parities between the asylum practices in the eu Member States and the Schengen Associated States remain. A ceas where ‘similar cases are treated alike and result in the same outcome’ as it is so ambitiously stated in the Stockholm Programme,6 is far from being a reality today. It remains to be seen to what extent the new legal framework that is being transposed in national legislation and implemented in practice will contribute to levelling out the current disparities and the different treatment of asylum seekers and refugees across the eu. This contribution focusses on some of the key challenges for the future of the ceas, in particular access to the territory and to protection in the eu, the failure of the Dublin system and the role and meaning of solidarity in the field of asy­ lum. Before doing so, a number of general observations are made with regard to some of the improvements of the second generation asylum instruments as well as the concerns they raise from a fundamental rights perspective. 2

The Asylum Package: Meeting the Expectations?

The detailed assessment of the various legal instruments of the asylum pack­ age has been done elsewhere in this volume. Overall, the assessment of the outcome of 5 years of intense negotiations on the asylum acquis is mixed. The progress from a fundamental rights perspective is undeniable. The level of pro­ tection for asylum seekers and beneficiaries of international protection has improved considerably. The further alignment of refugee status and subsidiary protection status in the Recast Qualification directive, for instance, is an 6 European Council, Stockholm Programme – An Open and Secure Europe Serving and Protecting Citizens, oj C 115/1, 4 May 2010.

76

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important development towards ending the artificial distinction between the two categories as far as their entitlement to economic and social rights is con­ cerned.7 While their need for international protection may arise out of very different situations, both categories of beneficiaries obviously have the same needs in terms of health care, housing, access to employment etc. Also the amendments to Articles 7 and 8 with regard to actors of protection and inter­ nal protection alternative have the potential to positively affect State practice. Recent research by the European Council on Refugees and Exiles (ecre) on the application of both provisions in 11 Member States has revealed that for instance the effectiveness of the protection is assessed to various degrees while the non-temporary nature of the protection as it is now explicitly required in Article 7 Recast Qualification Directive is hardly assessed in practice.8 As the Directive was only recently transposed in most of the Member States researched, the long term effect of the new provisions is yet to be seen. Other important positive changes to the eu asylum acquis resulting from the second phase of harmonisation include the improved procedural safe­ guards with regard to access to an effective remedy both in the Recast Asylum Procedures Directive and the Recast Dublin Regulation, the enhanced safe­ guards for vulnerable asylum seekers and the requirements with regard to the personal interview and the interview report. Also the fact that the Recast Dublin Regulation now introduces specific time limits for submitting a take back request, both in the case where a new asylum application has been lodged in the requesting Member State and where no such application has been lodged, and that the time limits for responding to requests for urgent replies are reduced, is to be welcomed.9 These shorter time limits are clearly in the interests of both asylum seekers and Member States as they speed up the process of determining the responsible Member State and reduce the delays in the asy­ lum seeker’s access to a substantial examination of  their protection needs. However, the fact remains that outside the context of urgent replies, asylum 7 For a detailed analysis see ecre, Information Note on the Directive 2011/95/eu of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of thirdcountry 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). 8 ecre, Actors of Protection and the Application of the Internal Protection Alternative. European Comparative Report, 2014, 44–45. The research mainly analysed Member States’ practices based on the 2011 Qualification Directive. 9 See Article 23(2) and 24(2) of the recast Dublin Regulation stipulating that a take back request must be submitted within two months after receiving a Eurodac hit and three months in case the take back request is based on other evidence than the Eurodac data.

A Common European Asylum System under construction

77

seekers may also under the Recast Dublin Regulation, have to wait for up to eleven months from the start of the Dublin procedure before the examina­ tion of their protection needs by the responsible Member State even starts. This is and remains irreconcilable with the overall objective of the Regulation to ‘guarantee effective access to the procedures for granting international protection and not to compromise the objective of the rapid processing of applications for international protection’10 and the overall objective within the ceas to ensure a swift determination of p ­ rotection needs. Moreover, whereas procedural safeguards for asylum seekers have improved, the underlying principles of the Dublin Regulation remain untouched. The system continues to allocate responsibility for examining an asylum applica­ tion on the basis of objective criteria and is based on the flawed premise that protection standards are equal in the Member States. Article 3(2) Recast Dublin Regulation, by incorporating the systemic deficiencies test as was laid down in the ns and me and Others judgement of the cjeu, acknowledges that deroga­ tions from the strict application of the hierarchical criteria may be mandatory in some cases. However, this in itself does not prevent that the presumption of compliance with fundamental rights and the eu asylum acquis in the respon­ sible Member States remains at the heart of the system. This was in so many words also confirmed by the cjeu in the aforementioned judgment where it held that ‘[a]t issue here is the raison d’être of the European Union and the creation of an area of freedom, security and justice and, in particular, the Common European Asylum System, based on mutual confidence and a pre­ sumption of compliance, by other Member States, with European Union law and, in particular, fundamental rights’.11 Initiatives such as the Asylum Information Database12 and the European Database on Asylum Law show how such assumption does not reflect the

10

11

12

See 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) (hereafter Recast Dublin Regulation), recital 5. Joined Cases C-411/10 and C-493/10, ns v Secretary of State for the Home Department and me and Others v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform, [2011] ecr i-13905, para 83. The Asylum Information Database provides information on law and practice on asylum procedures, reception conditions and detention in 16 eu Member States, Switzerland and Turkey, see . The European Database on Asylum law is a data­ base compiling and analysing refugee and asylum case law from the courts in 17 eu

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reality on the ground. National courts increasingly suspend transfers of asylum seekers under the Dublin Regulation with respect to various eu Member States in addition to Greece. In the case of Tarakhel v Switzerland, concerning the return of an Afghan family from Switzerland to Italy under the Dublin Regulation, the European Court of Human Rights (ECtHR), based on the find­ ing that a significant number of asylum seekers removed to Italy may find themselves without accommodation or be accommodated in substandard con­ ditions, again emphasised the fact that such fundamental rights compliance can never be taken for granted. The requirement in this case of an individual assessment in light of the risk that such transfer may result in inhuman and degrading treatment and the need for the Swiss authorities to obtain assur­ ances from the Italian authorities that the applicants will be received in facili­ ties and conditions adapted to the age of the children and that family is kept together, makes an automatic application of the Dublin criteria nearly impos­ sible.13 The impact of the judgment on Dublin practice remains to be seen, but it seems clear that it will make the Dublin procedure more cumbersome in a number of cases and may further undermine the overall effectiveness of the system as a whole. This adds to the already low number of transfer requests resulting in an actual transfer and Member States may increasingly assess it in their interest to examine asylum applications lodged on their territory them­ selves rather than engage in a long and complicated process of requesting the Member State responsible under the Dublin Regulation rules to do so. Other aspects of the asylum package remain worrying from a fundamental rights perspective as well. This is in particular the case with regard to the deten­ tion provisions in the Recast Reception Conditions Directive. In particular grounds for detention laid down in Article 8(3) are reason for concern as they have a potentially wide scope and could justify more systematic use of deten­ tion of asylum seekers, notwithstanding the fact that it constitutes an exhaus­ tive list of grounds.14 The grounds consolidate to a large extent pre-existing soft law such as the unhcr guidelines on the detention of asylum seekers.15 These have not necessarily reduced detention practices of States, as is illustrated by Member States, the cjeu and the European Court of Human Rights (ECtHR), see . 13 Tarakhel v Switzerland Appl no 29217/12 (ECtHR, 4 November 2014). 14 For a detailed analysis, see Asylum Information Database (aida), Not There Yet. An ngo Perspective on Challenges to a Fair and Effective Common European Asylum System, Annual Report 2012/2013, 30–36. 15 See unhcr, Detention Guidelines. Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention, 2012.

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the fact that unhcr has taken the welcome initiative to launch a five year global strategy to end the detention of asylum seekers and refugees.16 The eu legislator’s choice to draw inspiration from the unhcr guidelines is therefore not very reassuring and it is questionable whether it will effectively contribute to making detention of asylum seekers truly exceptional. In Bulgaria, for instance, the transposition of the Recast Reception Conditions Directive may result in the introduction of detention grounds that are broader than existed until then in national law.17 A final remark concerns the at times very complex and unclear nature of the new legal framework for the ceas and the wide discretion it still allows for Member States. This may not only have a negative impact on the way protec­ tion standards are transposed and implemented in practice, but also consti­ tutes an important obstacle to achieving the level of harmonisation and protection that will be required in a ceas as defined in the tfeu and the Stockholm Programme. The complexity of the asylum acquis is illustrated for instance by Article 24 and 25 of the Recast Asylum Procedures Directive on respectively applicants in need of special procedural guarantees and guaran­ tees for unaccompanied children. Whereas Article 24 includes an obligation for Member States to ensure that adequate support is provided to applicants who have been identified as applicants in need of special procedural guaran­ tees, it sets a very unclear norm with regard to the question as to whether such applications can be examined in accelerated or border procedures. On the one hand it does not exclude the processing of such claims in accelerated or border procedures, since this is left to the Member States to decide whether or not adequate support can be provided to these applicants. At the same time, it suggests that such adequate support cannot be provided in such procedures with regard to asylum seekers who are victims of torture, rape or other serious forms of psychological, physical or sexual violence. This is a missed opportu­ nity to unambiguously exclude the application of procedures which are not suitable to properly address extreme vulnerability of such applicants. Article 25 Recast Asylum Procedures Directive on guarantees for unaccom­ panied children is equally formulated in a very complex manner and sets a dubious standard, in particular with regard to the situations in which Member States may process an asylum application of an unaccompanied child in a bor­ der procedure while in detention. This may be applied inter alia where the applicant had mislead the authorities by presenting false documents or has 16 See unhcr, Beyond Detention. A Global Strategy to Support Governments to End the Detention of Asylum-Seekers and Refugees, 2014. 17 See aida, Country Report Bulgaria, Update April 2014, 53–54.

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destroyed in bad faith identity or travel documents but only where the appli­ cant is ‘attempting to conceal relevant elements which would likely lead to a negative decision and provided that the applicant has been given full opportu­ nity, […], to show good cause for the actions referred to in points (v) and (vi)’. How exactly the attempt to conceal those elements must be assessed and how it can be anticipated that this would likely lead to a negative decision is unclear and may lead to either arbitrary practices at the borders vis-à-vis unaccompa­ nied children or to the non-­application of the latter provisions in practice. Moreover, the very fact that the eu asylum acquis still allows for the processing of asylum applications of unaccompanied children in procedures at the bor­ der in detention is deplorable in itself as children should never be detained in the first place and border procedures are by definition not suitable for the most vulnerable among the vulnerable asylum seekers. 3

Key Challenges in Making the Common European Asylum System a Reality

The reform of the legal framework of the ceas and the adoption of the Asylum, Integration and Migration Fund18 provide the basis of the implementation of the eu’s common asylum policy for the coming years. While it is clear that the proof of the pudding is in the eating and effective transposition and imple­ mentation of the adopted legislation will be key in the coming years, the legal framework remains incomplete. In particular as regards the establishment of a uniform protection status valid throughout the Union, further legislative ini­ tiatives will be necessary to achieve the objectives of the ceas as laid down in Article 78 tfeu. At the same time, the increasing number of asylum seekers, refugees and migrants arriving by sea in Italy since autumn 2013, the disap­ pointing response of the eu to the phasing out of Italy’s Mare Nostrum opera­ tion and the growing uneven distribution of asylum seekers between eu Member States has put solidarity in the field of asylum again high on the eu’s political agenda. This section will discuss those challenges for the establish­ ment and deepening of the ceas from an ngo-perspective, referencing where 18

Regulation (eu) No. 516/2014 of the European Parliament and of the Council of 16 April 2014 establishing the Asylum, Migration and Integration Fund, amending Council Decision 2008/381/ec and repealing Decisions No. 573/2007/ec and No. 575/2007/ec of the European Parliament and of the Council and Council Decision 2007/435/ec (herein­ after amif Regulation), oj L 150/168, 20 May 2014. Although adopted in April 2014, the amif retroactively entered into force on 1 January 2014.

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necessary the strategic guidelines for legislative and operational planning within the area of freedom, security and justice which were adopted by the European Council in June 2014.19 3.1 Ensuring Proper Transposition, Implementation and Monitoring As mentioned in the previous section, the legal complexity of some aspects of the asylum package as well as the high level of discretion and room for manoeu­ vre for Member States risks compromising the transposition and implementa­ tion of the newly adopted standards. At the same time, the newly adopted standards must be read and interpreted in line with the growing body of juris­ prudence of the cjeu and the ECtHR in the field of asylum and immigration as well as the relevant provisions of the Charter of Fundamental Rights of the European Union.20 Charter provisions are increasingly used by the cjeu in interpreting the eu asylum acquis and establishing the exact meaning of the procedural and reception safeguards in European legislation and therefore also inform to a great extent Member States’ obligations beyond the actual pro­ visions in the acquis. In this respect, further guidance by the Commission to ensure coherent and uniform transposition and interpretation of often complex legal provisions and to take into account developments in jurisprudence of the ECtHR and cjeu could be helpful. In order to do so, the Commission has a number of tools at its disposal, ranging from targeted and informal discussions in the various contact committees to written guidelines on the implementation of the vari­ ous directives in the longer term. As regards the latter, the Commission guide­ lines on the application of the Family Reunification Directive may serve as an example as this has set a number of important benchmarks as to how Member States should implement the Directive but also provide specific recommenda­ tions in particular with regard to optional provisions or provisions leaving large discretion to Member States in order to stimulate uniform and harmon­ ised practice across the eu as much as possible.21 Many provisions in the 19 20

21

European Council, Conclusions, euco 79/14, 27 June 2014. Relevant provisions include in particular Article 1 (human dignity), Article 4 (prohibition of torture, inhuman or degrading treatment or punishment), Article 18 (the right to asylum), Article 19 (the principle of non-refoulement), Article 41 (the right to good administration) and Article 47 (the right to an effective remedy). For an in-depth discussion of the relevance of these provisions in the asylum field, see ecre and Dutch Council for Refugees, The Application of the eu Charter of Fundamental Rights to Asylum Procedural Law, October 2014. European Commission, Communication from the Commission to the European Parliament and the Council on guidance for application of Directive 2003/86/ec on the right to family reunification, com(2014) 210 final, 3 April 2014.

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recast asylum legislation would benefit from such clarification and guidance and in particular the provisions discussed in the previous section as raising concern with regard to their complexity and their potential for endorsing bad practices such the undefined risk of absconding in relation to the deten­ tion of asylum seekers or the use of accelerated and border procedures with regard to those asylum seekers requiring special procedural guarantees should be considered in this regard. However, also other aspects of the asy­ lum acquis, such as the meaning of legal and procedural information under Article 19 of the Recast Asylum Procedures Directive, the use of alternatives to detention, the level of material reception conditions and the possibility for Member States to ‘freeze’ the examination of asylum applications for a total of 21 months in case the situation in the country of origin of the asylum seek­ ers is ‘uncertain’ remain unclear and leave room for diverging interpreta­ tion.22 In this regard, it should be noted that also the European Asylum Support Office (easo) claims a prominent role in providing such guidance as it sees support to Member States in implementation of the asylum acquis as one of its priorities in 2014 and 2015.23 Given its mandate and governance structure it will be interesting to see how this will relate to the Commission’s role as the guardian of the Treaty and its work in the context of the contact committees in this field. Beyond the actual transposition of the new standards in national legisla­ tion, its implementation and monitoring in practice is key. In this regard, the Commission should prioritise monitoring and the launching of infringement procedures where necessary to enforce compliance with the eu asylum acquis as it remains its most powerful tool vis-à-vis the Member States. If it was deli­ cate for the Commission to do so while negotiating the asylum package with

22

See Article 31(4) Recast Asylum Procedures Directive according to which without preju­ dice to Article 13 and 18 of Directive 2011/95/eu, Member States may postpone concluding the examination procedure where the determining authority cannot reasonably be expected to decide within the time-limits laid down in paragraph 3 due to an uncertain situation in the country of origin which is expected to be temporary. The practice of ‘freezing’ asylum applications has been used frequently by eu Member States in the past, including in situations where applicants can be considered to be in need of international protection prima facie, such as in the case of asylum applicants from Syria during a cer­ tain period in 2012. This prolongs the situation of insecurity and hardship for the appli­ cants concerned and delays their access to the labour market, family reunification rights etc. On this issue, see for instance easo, Annual Report on the Situation of Asylum in the eu 2012, 32–33. 23 See easo, Work Programme 2014, 6–7.

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the Member States and the European Parliament, such argument is of course no longer valid. Both with regard to the monitoring of Member State practice and enforcing the safeguards for asylum seekers laid down in eu asylum law and the eu Charter of Fundamental Rights, the role of non-governmental organizations and legal practitioners is key. Today, in some countries access to legal assis­ tance in particular during the first instance is only provided by ngos. However, many ngos in Europe are increasingly struggling with shrinking resources to perform their crucial task in the architecture of the ceas, including in the field of legal assistance. In some countries, budget cuts for legal aid and poor remu­ neration are important factors making this area of law less attractive to law­ yers.24 In addition, asylum seekers face practical obstacles to access quality legal assistance, such as the location where they are accommodated or detained and the speed with which the procedure is conducted. At the same time, asylum procedures become increasingly complex with in some cases short deadlines for responding to requests for information, lodging appeals etc. As a result, asylum seekers today are confronted with a creeping paradox whereby legal assistance becomes more and more indispensable to preserve their fundamental rights in the procedure but is less and less available in prac­ tice. This growing mismatch between the theoretical level of protection for asylum seekers and beneficiaries of international protection laid down in the recast eu asylum legislation and the lack of empowerment of asylum seekers to exercise their rights under the asylum acquis and the eu Charter of Fundamental Rights is extremely problematic. It will be crucial for the credi­ bility and the viability of the ceas in the coming years to effectively address this growing discrepancy and increase the capacity and availability in practice of quality legal assistance at all stages of the asylum procedure. Finally, enhancing quality and convergence of decision-making will remain a key challenge in particular in the current architecture of the ceas where the competence to take individual decisions in asylum cases remains with the Member States. Important differences in recognition rates and treatment of asy­ lum seekers during the assessment of their claim continue to exist between eu

24

On this issue see for instance aida, Mind the Gap: An ngo Perspective on Challenges to Accessing Protection in the Common European Asylum System. Annual Report 2013/2014, 54–55.

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Member States. An interesting example is the case load from the Russian Federation, the majority of which still consists of Chechen families, although the number of ethnic Russians fleeing Russia has increased. In 2013, in countries where there were over 100 asylum applications by Russian citizens, the recogni­ tion rate at first instance varied between 2% in Germany and 41% in the United Kingdom, while Germany was the main country of destination for asylum ­seekers from Russia in the eu. Another illustration are the recognition rates for Somali nationals in 2013, which varied between 17% in France and 96% in Italy.25 Reducing the disparities in and enhancing the convergence of decision-mak­ ing practice of Member States remains a major challenge and many of the activities of easo in the field of practical cooperation, analysing and producing relevant country of origin information and work with the judiciary serve this very purpose.26 At the same time, there are limitations as to the level of har­ monisation of individual decision-making practice that can be achieved through the coordination of practical cooperation through easo. Eventually, taking individual decisions on asylum applications remains a complex process in which credibility assessment and the interpretation of subjective elements in the asylum seeker’s application play an important role. While easo has impor­ tant competences with regard to country of origin information and the training of asylum authorities and seeks to cooperate more closely with the judiciary, it has no mandate to impose specific approaches to caseloads or interpretations of the protection grounds in the asylum acquis. Moreover, according to its founding Regulation, easo should not have direct or indirect powers in relation to decisions taken on individual asylum applications.27 However, recent initia­ tives with regard to supported processing carried out by easo point at an increasing engagement with regard to individual decision-making practices of Member States and it is clear that it sees potential in further engagement in such activities beyond the pre-interview stage of the procedure culminating in joint processing.28 Whether this is a first step towards easo taking up a more direct role in individual decision-making on asylum applications and amending the easo Regulation for that purpose on the long term is uncertain but it is 25 See aida, Mind the Gap, Annual Report 2013/2014 (n 24) 18–19. 26 The existence of such disparities and the need to reduce them are explicitly acknowl­ edged in recital 2 of the easo founding Regulation. See Regulation (eu) No. 439/2010 of the European Parliament and of the Council of 19 May 2010 establishing a European Asylum Support Office (hereafter easo Regulation), oj 2010 L 132/11, 29 May 2010. 27 See recital 14 easo Regulation. 28 See easo, Newsletter September 2014, 7.

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clear that an actual conferral of decision-making powers to easo would most likely not have a legal basis in the tfeu as it stands now, as asylum remains a matter of shared competences. However, it may well be that eu centralised individual decision-making on asylum applications may be necessary to reduce the level of disparities between eu Member States to acceptable levels. As the ceas further develops, the possibility of establishing an independent eu asy­ lum authority with a competence to take individual decisions on asylum appli­ cations on eu territory may have to be revisited in the long term should the current tools at the disposal of the eu, including the growing body of jurispru­ dence of the cjeu in the field of asylum not result in the desired level of har­ monisation and convergence of individual decision-making.29 Establishing a Uniform Status Truly Valid throughout the Union and Transfer of Protection Status Further legislative steps will be needed in order to complete the legal frame­ work for the eu’s common asylum policy, in particular with regard to the ‘uni­ form status of asylum for nationals of third countries, valid throughout the Union’ as required by Article 78 tfeu.30 In this regard, mutual recognition of positive asylum decisions and the transfer of protection statuses between eu Member States is generally considered to be the next logical step in the com­ pletion of the legal framework of the ceas and has been called for by the Commission, academics and ngos.31 Nevertheless, the strategic guidelines do

3.2

29 30

31

On this issue see also ecre, Enhancing Intra-eu Solidarity Tools and to Improve Quality and Fundamental Rights Protection in the Common European Asylum System, January 2013. Article 78 (2) (b) tfeu also requires a uniform status of subsidiary protection but does not refer explicitly to such status being valid throughout the Union. However, it would be inconsistent with the increasing alignment of both statuses under the eu asylum acquis to develop a system of mutual recognition and transfer of protection status that would be limited to refugee status. In this regard it should be noted that the Stockholm Programme called on the Commission to examine the possibility of a framework for the transfer of protection of beneficiaries of international protection. Mutual recognition of positive asylum decisions is an issue that has been on the Commission’s radar for many years. It was raised in the Green Paper on the ceas in 2007, was mentioned in the Stockholm Action Plan, although the principle was not included in the Stockholm Programme as such and was again referred to in the Commission’s com­ munication on the future of home affairs in March 2014. See European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. An open and secure Europe: making it happen, com(2014) 154 final, 11 March 2014.

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not refer explicitly to mutual recognition of positive asylum decisions, whereas a draft version of the guidelines did include such explicit reference.32 Mutual recognition would not only compensate for the asymmetry currently existing in the eu legal framework that is built on the mutual recognition of Member States’ negative decisions on asylum applications through the eu Return Directive33 and the Directive on the mutual recognition of decisions on the expulsion of third country nationals.34 If combined with a system to ensure transfer of pro­ tection status obtained in one Member State to another Member State, it would also further enhance the free movement of beneficiaries of interna­ tional protection within the eu as well as their protection from refoulement. In order for a uniform status to be valid throughout the Union, a person granted international protection in one Member State should be able to access the rights attached to such status in the Recast Qualification Directive in another Member State. To a certain extent, the concept of mutual recognition is already enshrined in refugee law. In fact, under the 1951 Geneva Refugee Convention, Member States are obliged to treat refugees recognised in another State party to the Convention as nationals such as with regard to access to elementary education and access to courts35 or as most favoured foreigner such as with respect to access to wage-earning employment, self-employment and housing.36 Under the Recast Qualification Directive, beneficiaries of inter­ national protection are entitled to access to employment, education and pub­ lic relief under the same conditions as nationals, while nothing in the Directive prevents Member States from granting access to the rights it entails to persons granted international protection in another eu Member State. Therefore, the principle that a status recognised in one Member States should be valid in 32 33

34 35

36

See Council of the European Union, European Council (26 and 27 June 2014) – Draft Conclusions, Doc. 8284/14 LIMITE CO EUR PREP 12, 16 June 2014. According to Article 11 of the Return Directive, Member States are obliged in certain cases to issue a re-entry ban, which is defined in Article 3(6) as ‘an administrative or judicial decision or act prohibiting entry into and stay on the territory of the Member States for a specified period, accompanying a return decision’. See Directive 2008/11/ec of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, oj 2008 L 348/98, 24 December 2008. See Council Directive 2001/40/ec of 28 May 2001 on the mutual recognition of decisions on the expulsion of third country nationals, oj 2001 L 149/34, 2 June 2001. See Article 22(1) and 16 of the 1951 Convention relating to the Status of Refugees (United Nations Convention Relating to the Status of Refugees, 189 UNTS 137, 28 July 1951 (entry into force 22 April 1954)). See Article 17, 18 and 23 Geneva Refugee Convention.

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another Member State according to Article 78 tfeu and that refugees should be treated as nationals for most rights under the Recast Qualification Directive shows that the rights attached to a protection status granted in one Member State must be enforceable in all other Member States as well. A uniform status valid throughout the Union also requires that the protec­ tion status obtained in one eu Member State is transferred to another eu Member State at some stage in case a beneficiary of international protection takes up residence in that other Member State. This is currently explicitly excluded from the scope of the amended long term residence directive37 and is not covered elsewhere in the eu asylum acquis. Moreover, the amended long term residence Directive only applies once a person has obtained long term residence status, which is only possible after a period of at least five years. It does not cover the situation of a refugee, for instance, who makes use of the right to travel within the eu for a period of no longer than three months. Within that period, eu law does not provide sufficient guarantees against vio­ lations of the principle of non-refoulement. This was illustrated in the case of mg v Bulgaria of March 2014 before the ECtHR.38 This case concerns a Chechen man with refugee status in Germany and Poland who was apprehended at the Bulgarian/Romanian border follow­ ing an extradition request from the Russian authorities. The Bulgarian authori­ ties wanted to pursue extradition and argued that mg had not been recognised in Bulgaria as a refugee and that they were therefore not bound by the deci­ sions of Poland and Germany. The ECtHR held that his extradition would have amounted to a violation of Article 3 echr. It should be noted that the Court explicitly referred to the absence of mutual recognition of asylum decisions in the eu legal framework and that the applicant had obtained refugee status in two eu Member States, which was an important element in the assessment of the existence of a real risk of ill-treatment upon return to Russia. In order for the principle of mutual recognition of positive decisions on asylum applications and the transfer of protection statuses to be fully enshrined in eu asylum law, further legislative initiatives are needed. This could be laid down in a new legal instrument or take the form of additional amendments to the Recast Qualification Directive and the amended Long Term Residence Directive.39 37

38 39

Directive 2011/51/eu of the European Parliament and of the Council of 11 May 2011 amend­ ing Council Directive 2003/109/ec to extend its scope to beneficiaries of international protection, oj 2011 L 132/1, 19 May 2011. mg v Bulgaria Appl no 59297/12 (ECtHR, 25 March 2014) (French only). For an in-depth analysis, see ecre, Mutual Recognition of Positive Asylum Decisions and the Transfer of International Protection. Discussion Paper, November 2014.

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3.3 Safe and Legal Access to Protection in the eu The tragic death of over 600 migrants in two shipwrecks off the coast of Lampedusa in October 2013 sparked the debate on the lack of an effective eu response to one of the most pressing humanitarian crises at the eu’s external borders in the past decades. A Task Force Mediterranean was established which finally identified a list of 37 mainly already existing measures that the eu could take on the mid to long term.40 This was in sharp contrast with the immediate launch by Italy of the Mare Nostrum operation in the Mediterranean which by the end of October 2014 had rescued about 155.000 migrants at sea and brought them on land in Italy. The lack of support for this life-saving operation from other eu Member States was an embarrassing illustration of the lack of solidar­ ity between eu Member States, despite Article 80 tfeu requiring eu policies in the area of asylum, migration and border controls to be governed by the prin­ ciple of solidarity and fair sharing of responsibility. This was only partly com­ pensated by the launch of the Frontex-coordinated operation Triton in response to the Italian intention to ‘phase out’ operation Mare Nostrum in view inter alia of the considerable financial implications for Italy. The Triton operation as ini­ tially designed, had a much more limited geographical scope, operated with significantly smaller resources compared to the Mare Nostrum operation and for an initial period of two months as of 1 November 2014. Moreover, the com­ munication from Frontex and the Commission relating to the launch of opera­ tion Triton initially emphasised in particular that, contrary to the Mare Nostrum operation, operation Triton has its main focus on border surveillance and pre­ vention of irregular migration rather than search and rescue. However, in later statements its was explicitly mentioned that the ships involved in the operation are under an obligation to come to the rescue of migrants in distress in accor­ dance with international maritime and human rights law and the newly adopted Regulation on external sea border surveillance.41 It was only in April 2015, following two other tragic shipwrecks off the Libyan Coast in April 2014, that the European Council decided to triple the resources for operations Triton and Poseidon for 2015 and 2016 and emphasised that this would allow to increase the search and rescue possibilities within the mandate of Frontex.42 40

41 42

European Commission, Communication from the Commission to the European Parliament and the Council on the Work of the Task Force Mediterranean, com(2013) 869 final, 4 December 2013. A state of play of its implementation was published in May 2014 see E ­ uro­pean Commission, Commission Staff Working Document. Implementation of the Communi­cation on the Work of the Task Force Mediterranean, swd(2014) 173 final, 22 May 2015. See Frontex, More Technical Support Needed for Operation Triton, available at (accessed on 17 November 2014). European Council, Special meeting of the European Council, 23 April 2015 – statement.

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The increasing number of asylum seekers, refugees and migrants risking their lives by taking the dangerous sea route and the unprecedented number of migrants’ deaths at sea highlighted once more the consequences of the lack of safe and legal channels for those in need of international protection to reach the eu territory and have access to the ceas. At the same time, consis­ tent reports of push backs at the external land and sea borders such as at the Greek islands, at the Bulgarian/Turkish borders and in Ceuta and Melilla43 and the shift of migration routes as a result of the strengthening of border controls at those entry points of Europe adds to the urgency of the need for a shift in the eu’s overall approach on mixed migration flows. The urgency of having such legal channels in place or making existing channels more acces­ sible was not acknowledged to the same degree by the various stakeholders. The Commission communication on the Task Force Mediterranean clearly identified legal ways to access Europe, together with Regional Protection Programmes and resettlement, as one of the five strands of actions focusing on immediate and practical solutions that could complement ongoing activi­ ties in the whole of the Mediterranean in the short term as part of a holistic approach.44 Also in its communication on the future of Home Affairs prepar­ ing the ground for the Strategic guidelines in the area of freedom, security and justice adopted by the European Council in June 2014, the Commission repeated the need for the eu to ‘seek to ensure a more orderly arrival of per­ sons with well-founded protection needs, reducing the scope for human smuggling and tragedies’.45 However, there is clearly little appetite within the Council to pursue this debate at eu level as is reflected by the lack of any refer­ ence to the need for creating or using legal channels for protection reasons in the strategic guidelines. There is potentially a wide range of measures that Member States could take in order to increase the possibilities for refugees to travel in a safe and legal way  to eu territory instead of having to resort to smuggling networks and 43

44

45

See for instance Pro Asyl, Pushed Back: Systematic Human Rights Violations against Refugees in the Aegean Sea and at the Greek-Turkish Land Border, November 2013 and Human Rights Watch, New Evidence Syrians Forced Back to Turkey, 18 September 2014. European Commission, Communication from the Commission to the European Parliament and the Council on the Work of the Task Force Mediterranean, com(2013) 869 final, 4  December 2013. For an interim stock-taking of the implementation of the measures identified by the Task Force, see European Commission, Commission Staff Working Document. Implementation of the Communication on the Work of the Task Force Mediterranean, swd (2014) 173 final Part 1 /2 and 2 /2, 22 May 2014. European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. An open and secure Europe: making it happen, com(2014) 154 final, 11 March 2014.

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l­ife-threatening journeys over sea or land to reach protection in the eu. An exhaustive analysis of all available channels is beyond the scope of this contri­ bution but the most important ones include protected entry procedures or the issuance of humanitarian visas trough consular representations or embassies of eu Member States in third countries; a more flexible use of family reunification procedures for beneficiaries of international protection; a significant increase of resettlement places in eu Member States as well as the use of humanitarian admission and private sponsorship programmes. Whereas protected entry pro­ cedures have been used in the past, and abandoned again by a number of eu Member States for a variety of reasons, including the increased administrative burden on their diplomatic representations, the presumed pull factor of such procedures and the lack of solutions for those whose application is rejected, the use of humanitarian visa with limited territorial validity under the Community Code on Visas may have greater potential at eu level.46 The Visa Code lays down the procedures and conditions for issuing transit visas or visas for short stays in the territory of the Member States and distinguishes between uniform visas, air­ port visas and visas with limited territorial validity. The latter category is defined as a visa valid for the territory of one or more Member States but not all Member States and constitutes an exception to uniform visas. In the context of the legal channels debate, visa with limited territorial validity can be a useful and effec­ tive tool for granting access to the territory of one or more Member States in specific circumstances, such as in case of persons in need of international pro­ tection. Article 25 of the Visa Code includes an obligation for Member States to exceptionally issue a visa with limited territorial validity inter alia when the Member State concerned considers it necessary on humanitarian grounds, for reasons of national interest or because of international obligations to derogate from the principle that entry conditions laid down in Article 5(1) of the Schengen Borders Code must be fulfilled. The problem is that the wording of the provision is ambiguous as it constitutes on the one hand an obligation for Member States but which seems to exist only exceptionally and on the other hand suggests con­ siderable discretion for Member States as such obligation is only triggered when the Member State concerned ‘considers it necessary’. Moreover, Article 19 deal­ ing with the admissibility of visa applications under the Visas Code only refers to 46

See Regulation (ec) No. 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code), oj 2009 L 243/1, 15 September 2009. A recast proposal was presented by the Commission in April 2014 and is currently under discussion in the Council and the European Parliament. See European Commission, Proposal for a Regulation of the European Parliament and of the Council on the Union Code on Visas (Visa Code) (recast), com(2014) 164 final, 1 April 2014.

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the existence of humanitarian grounds or reasons of national interest as grounds for derogating from the admissibility criteria for visa applications without explicitly referring to ‘international obligations’ as it is the case in Article 25 Visas Code.47 However, it could be argued that if the issuance of a visa would be the only way to comply with international obligations, including under the 1951 Refugee Convention or the European Convention on Human Rights and Fundamental Freedoms (echr), Member States are under an obligation to issue a visa to a person seeking international protection. The consequence of the ECtHR judg­ ment in the case of Hirsi Jamaa and Others v Italy is in any case that as soon as a person is within the jurisdiction of a Member State, which is undeniably the case when they present themselves at an embassy, that Member State must enable access to a procedure to verify whether the principle of non-refoulement would be violated upon return.48 This entails the observance of a minimum set of procedural guarantees such as access to information, interpretation, legal assistance and an effective remedy.49 Where this would not be possible at the embassy, this would require the issuance of a visa in order to enable the person concerned to access the asylum procedure on the territory of that eu Member State. Whether this would be a feasible option for significant numbers of refu­ gees remains to be seen but it certainly has potential. Recent research showed that in 2013 about 176.000 Schengen type C visas with limited territorial validity were issued.50 While it is not clear on which grounds these visas were issued, it appears that the lack of capacity and additional administrative burden on Member States’ representations, often the argument against the use of embassy procedures, was not a factor in these cases. As part of the discussion on legal channels, the idea of joint external pro­ cessing has been raised again in the context of the Task Force Mediterranean and the Commission Communication on the future of home affairs. In both cases reference is made to the possibility of a ‘feasibility study on joint process­ ing of protection claims outside the eu, without prejudice to the existing right to access to asylum procedures in the eu’.51 The latter is important as it marks 47 48 49 50 51

See Article 19(3) Visas Code. This applies even regardless of whether a person has explicitly requested asylum or not. See Hirsi Jamaa and Others v Italy Appl no 27765/09 (ECtHR, 23 February 2012) para 133. Idem, paras 201–206. See European Parliament, Humanitarian Visas. Option of Obligation? Study for the libe Committee, 2014, 42–43. See European Commission, An Open and Secure Europe: Making it Happen, com(2014) 145 final, 11 March 2014, 7–8.

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a fundamental difference with highly contested concepts of external process­ ing in the past that were presented by the uk and Germany in 2003 and 2004. In what became known as the Blair/Schily plans the proposal was made to set up centres in transit countries where asylum applications would be processed and examined as an alternative to processing asylum applications on eu ­territory. An essential characteristic of those plans was that asylum seekers arriving in the eu, whether they had passed through one of those transit cen­ tres or not, would be sent back to a centre located outside the eu where their asylum application would be examined in all cases. This was immediately rejected by a number of ngos as unlawful under international human rights and refugee law and an unacceptable shifting of responsibilities towards States with less developed asylum systems that are already hosting the majority of the world’s refugees. At least from the Commission’s perspective, the starting point seems to be that any such model should always be complementary to the processing of asylum applications of those arriving on the territory. Whether this is shared by the Member States is still unclear as there seems to be a lack of common understanding about what is exactly meant by external joint processing. Individual Member States have made statements leaning towards the idea of setting up centres in third countries again,52 while a document prepared by the Italian Presidency in preparation of the October 2014 Justice and Home Affairs Council meeting and endorsed by the Council, mentions the idea of establish­ ing centres managed by unhcr/iom in transit countries. According to the Council conclusions, those centres should be established to implement three types of actions identified in the conclusions: (1) the development of new and reinforced Regional Development and Protection Programmes, (2) proposing a credible number of resettlement places, be it still on a voluntary basis and (3) the strengthening of joint eu actions on return.53 It is clear that the idea of external processing, whether it is through the use of large scale centres in strategically chosen countries of transit or through an individual embassy procedure raises a range of legal, political and practical questions as regards their feasibility and compatibility with human rights law. 52

53

See for instance the statements of German Minister of Interior Thomas de Maizière with regards to the possibility of establishing ‘welcome and departure’ centres in Egypt for refugees and asylum seekers. See S. Braun, ‘Europäische Asylpolitik in Afrika’ Süddeutsche Zeitung (Munich, 14 November 2014). See Council of the European Union, Council Conclusions on ‘Taking Action to Better Manage Migratory Flows’,  Justice and Home Affairs Council Meeting, 10 October 2014.

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One particular question is which legal standards would be applicable in case a protection request is being processed outside the territory. Both the Recast Asylum Procedures Directive and the Recast Reception Conditions Directive explicitly exclude requests for diplomatic or territorial asylum submitted to representations of Member States from their scope.54 The Recast Qualification Directive, on the other hand, does not include such a limitation as it does not define its geographical scope and at the same time includes an obligation for Member States, to grant refugee status or subsidiary protection status to any third country national who is eligible for such protection under the Directive.55 Could it be argued that a Member State, confronted with a request for protec­ tion outside the territory is under an obligation to review such a request in accordance with the Recast Qualification Directive? While the Recast Reception Conditions Directive and the Recast Asylum Procedures Directive would not apply, because of the abovementioned limitation of their scope, at a minimum the procedural guarantees that can be derived from the eu Charter, which must be observed by Member States when implementing eu law, as well as the general principles of Union law, including the right to good administra­ tion, as established by the cjeu would have to be complied with.56 Also the question as to where external joint processing would be conducted, what conditions would need to be complied with and third countries’ willing­ ness to host such an operation is particularly relevant. It is remarkable how such discussions have invariably started without consulting the potential host countries, while the repercussions for them, in terms of hosting additional persons in need of international protection at least temporarily, are poten­ tially huge. Nevertheless, in view of the rising death toll in the Mediterranean and ­elsewhere on the migration route to the eu, a serious debate at eu level (re-)exploring all options mentioned above is urgently needed. While it is legitimate for eu Member States to tackle smuggling networks, such efforts 54 55

56

See Article 3(2) Recast Reception Conditions Directive and Article 3(2) Recast Asylum Procedures Directive. See Article 13 and 18 Recast Qualification Directive. The Directive also defines an applica­ tion for international protection as a request for protection as defined in the directive by a third country national from a Member State, without any specification as to where such protection is sought from a Member State, and therefore not excluding the situation where such request is made outside the territory of a Member State. Of particular relevance would be the provisions on the right to asylum (Article 18 of the eu Charter of Fundamental Rights), the prohibition of non-refoulement (Article 19), the right to an effective remedy (Article 47) and human dignity (Article 1).

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will be useless without at the same time offering credible alternatives to those in need of international protection or in search of a better life. Enhancing Solidarity with a View to Improving Protection and Quality The continuing trend of the concentration of the vast majority of asylum applications in only a handful of Member States and the ongoing challenges for Member States to comply with the asylum acquis have further illustrated the need for concrete solidarity within the ceas. In 2013, 70% of all asylum applications were lodged in only five eu Member States (Germany, France, Sweden, Italy and the United Kingdom) while 50% of all asylum applications from Syria were lodged in only two eu Member States, Germany and Sweden.57 This trend has continued in 2014 and 2015. The uneven distribution of asylum applications within the eu and the lack of a truly European response to some of the challenges this entails for certain eu Member States raises a number of fundamental questions about the func­ tioning of the ceas today. First, a considerable number of asylum seekers do not make their asylum application in the first country of arrival in the eu but travel on to other eu Member States. This is increasingly becoming a concern of Member States with regard to Italy and Greece in particular, hence the pres­ sure on both countries to take more effective measures to ensure that all those arriving through sea are registered and fingerprinted there. Nevertheless, the reasons for the onward movement within the eu are manifold, including the presence of family members in other eu Member States, language, integration perspectives post recognition and chances of being granted a protection sta­ tus. Moreover, asylum seekers as well as persons who have obtained a protec­ tion status in some Member States increasingly resort once more to smuggling networks to travel within the eu as they are not allowed to do so legally under the Dublin Regulation or in the case of beneficiaries of international protec­ tion face obstacles to travel legally within the eu. Secondly, the recent developments also raise question with regard to the role and meaning of the principle of solidarity and fair responsibility sharing as laid down in Article 80 tfeu for the future of the ceas. Italy, for instance, has been arguing for a long time that it requires concrete solidarity from other eu Member States in dealing with the unprecedented number of sea arrivals thus far. On the other hand, other eu Member States refer to the increasing numbers of asylum applications on their territory and urge Italy to step up its

3.4

57

aida, Mind the Gap, Annual Report 2013/2014 (n 24) 14.

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efforts to increase its reception capacity and comply with their obligations under the eu asylum acquis.58 Despite 15 years of harmonisation in the field of asylum, the current deadlock on the solidarity debate at the eu level seems to illustrate a fundamental distrust in each other’s practices and real intentions, rather than the much acclaimed mutual trust between eu Member States. In addition, the Dublin system and its premise of the existence of equal standards in eu Member States is increasingly questioned by both national and European Courts from a human rights perspective as mentioned in Section 2. All these factors indicate that the Dublin system, even under its recast version, is not sustainable both from a human rights and an efficiency perspective and has more past than future. A fundamental review of the Dublin system and the solidarity mechanisms that currently exist at eu level is urgently needed. In fact this is explicitly acknowledged in the preamble of the Recast Dublin Regulation as it mentions that ‘given that a well-functioning Dublin system is essential for the ceas, its principles and functioning should be reviewed as other components of the ceas and Union solidarity tools are built up’.59 While a system of allocation of responsibility will continue to be needed, experience so far has shown that any system that fails to take into account the preferences or established links of asylum seekers with a certain Member State is doomed to fail. Finally, the potential of the eu’s solidarity tool box to address protection challenges in the ceas and particular pressures on specific Member States is yet to be fully explored. Measures such as intra-eu relocation, joint or sup­ ported processing within the eu and the various forms of practical coopera­ tion and exchange of expertise through easo obviously has potential to contribute to strengthening asylum systems in the eu Member States. Nevertheless, sufficient guarantees will have to be built in to ensure that those concrete forms of inter-state solidarity keep the main focus on strengthening 58

59

As illustrated by the October jha Council conclusions emphasising the importance of effective measures to prevent secondary movements and the systematic registration, identification and fingerprinting. See Council of the European Union, Council Conclusions on ‘Taking Action to Better Manage Migratory Flows’ Justice and Home Affairs Council Meeting, 10 October 2014. Recital 9 of 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), oj 2013 L180/31, 29 June 2013.

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the protection system and do not become exercises in exchanging question­ able State practice or containing asylum seekers in certain Member States and leading to a downgrading of protection eventually.60 At the same time, mea­ sures will have to be taken in order to ensure that solidarity measures are not turning into disincentives for States to invest in solid and rights-respecting national asylum systems where obligations under international human rights law and eu asylum law are effectively upheld. Striking that delicate balance is crucial in the debate on solidarity and effective and independent monitoring by ngos and the involvement of unhcr in such processes will be key to avoid any (un)intended side-effects. 4 Conclusion While the second phase of harmonisation has certainly further improved the legal framework of the ceas, it is far from being perfect and important gaps remain. It is an illusion to think that the second phase of harmonisation was the final one as transposition and developments on the ground will no doubt reveal further gaps and the need for further amendments to the eu legal framework. Moreover, further steps are needed to complete the legal frame­ work of the ceas, such as the establishment of a uniform status of beneficia­ ries of international protection that is valid throughout the Union. What conceptually seems to be the next logical step, is politically sensitive in a context where even the free movement of (certain) eu citizens is being con­ tested. Nevertheless, the discussion on mutual recognition of positive asylum decisions and the transfer of protection status as well as the solidarity debate is essential for the future of the ceas as it goes to the heart of this ambitious project. The lack of a truly European response to the situation in the Mediterranean and the arrival of hundreds of thousands of refugees at the external borders is worrying in this respect and illustrates a disbelief in the viability of a common system. Finally, ensuring safe and legal access to the territory and to international protection in the eu remains a key challenge in light of the ongoing humani­ tarian crisis in the Mediterranean and the worsening of major conflicts such as in Syria with no signs of improvement in the immediate future. In this 60

For an in-depth discussion of the main solidarity tools at the disposal of the eu and its Member States see ecre, Enhancing Intra-eu Solidarity Tools and to Improve Quality and Fundamental Rights Protection in the Common European Asylum System, January 2013.

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regard, the refusal on the part of most Member States to enter in a serious discussion about opening up or making more use of legal ways for refugees to enter the ceas is no longer credible in light of the eu’s discourse on the need to reduce the loss of life of asylum seekers, refugees and migrants en route to the eu.

PART 2 The Dublin Regulation

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chapter 5

The Dublin iii Regulation: A New Legal Framework for a More Humane System? Francesco Maiani* 1 Introduction The ‘Dublin system’ is the oldest building block of the European Asylum Policy, dating back to its inter-governmental ‘pre-history’: first established under the 1990 Schengen Convention1 and the 1990 Dublin Convention2 that has given it its nickname, it was transformed in a piece of Community legislation with the 2003 ‘Dublin ii Regulation’ (dr ii),3 and finally recast as a European Union (eu) Regulation with the ‘Dublin iii Regulation’ of 2013 (dr iii).4 The approach followed throughout these transformations has been one of incremental change. As expressed in the preambles to both the Dublin ii and Dublin iii Regulations,5 the eu legislator has on both occasions decided that it was ‘appropriate, at this stage, to confirm the principles underlying’ the * Associate Professor, Public and European Law, Swiss Graduate School of Public Adminis­ tration (idheap), Faculty of Law, Criminal Justice and Public Administration, University of Lausanne. 1 Convention implementing the Schengen Agreement of 14 June 1985 between the Govern­ ments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the Gradual Abolition of Checks at their Common Borders of 19 June 1990, oj L 239/19, 22 September 2000 (entry into force 1 September 1993; applied since 26 March 1995). 2 Convention Determining the State Responsible for Examining Applications for Asylum Lodged in One of the Member States of the European Communities, oj C 254/1, 15 June 1990 (entry into force 1 September 1997). 3 Council Regulation 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, oj L 50/1, 25 February 2003 (Dublin ii Regulation or dr ii). 4 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), oj L 180/31, 29 June 2013 (Dublin iii Regulation or dr iii). 5 See respectively Recital 5 dr ii and Recital 9 dr iii.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004308664_006

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Dublin system ‘while making the necessary improvements in the light of ­experience’. Recital 9 of the Dublin iii Regulation clarifies that in 2013, the goal of said improvements was specifically to strengthen ‘the effectiveness of the Dublin system and the protection granted to applicants under that system’. Can the recast Regulation deliver on these promises? In attempting an appraisal, it is best to start from basics rather than from details. The fundamental choice made with the recast Regulation has been to confirm once again ‘the principles underlying’ the old Regulation. The first question is therefore whether it is at all possible to achieve more efficiency and fairness while at the same time retaining the Dublin system as the responsibility-­allocation mechanism of the Common European Asylum System (ceas). This will be dealt with in Part 2. In Part 3 I will turn to the key amendments made to the Dublin system while bearing in mind the evolving case law of the European Court of Justice (ecj). In Part 4 I will summarise the main findings and offer my concluding remarks. 2

What Has Not Changed (and Why it Matters Most)

The Dublin system is one of several systems of responsibility-allocation that could theoretically be adopted under the eu Treaties (2.1). I will argue that its distinctive features (2.2) largely account for the problems documented in over twenty years of operation, so that maintaining it as the basis of responsibilityallocation is a legislative choice that precludes significant gains under the standpoint of both efficiency and fairness (2.3). Several Allocation Systems are Possible under Article 78 of the Treaty on the Functioning of the European Union Under Article 78(2)(e) of the Treaty on the Functioning of the European Union (tfeu),6 the ceas must include ‘criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection’. This provision implies, first, that in the current constitutional setting of the eu, examining requests for protection is a matter reserved for the Member States. The requirement that a single ‘Member State’ be identified as responsible for

2.1

6 Consolidated version of the Treaty on the Functioning of the European Union, oj C 326/47, 26 October 2012 (entry into force 1 December 2009).

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each application also seems to imply that as a rule, the other States should not have to consider the same application.7 For the rest, it is up to the l­ egislator to choose the ‘criteria and mechanisms’ that best suit the ceas, in keeping with the protection principles of Article 78(1) tfeu and with the ‘principle of solidarity and a fair sharing of responsibility’ of Article 80 tfeu. There are in fact several possible models. The Executive Committee of the Programme of the United Nations High Commissioner for Refugees (unhcr), which first suggested that an inter­ national responsibility-allocation system be established in order to prevent ‘­refugee-in-orbit’ situations, recommended in 1979 that ‘the intentions of the asylum-seeker’ should be taken into account ‘as far as possible’, and that applicants should be called upon to submit their request to another State only if justified by a previous ‘connection or close links’, and only ‘if […] fair and possible’.8 Building on these principles, unhcr suggested in 2001 that the responsibility to examine applications should be assigned to the State where the application was lodged, save where ‘close links’ existed with another State such as family connections, previous stay, or cultural affinities.9 unhcr further emphasised that any responsibility-allocation system would need to have as its central consideration ‘[t]he interest of the refugee to have his/her claim determined fairly and promptly, in an environment supportive of his/her psychological and social needs’,10 and that the ‘credibility’ of such a system would be contingent upon ‘the existence of harmonised standards’ and on what it called ‘the balance of effort among Member States’.11 The European Council on Refugees and Exiles (ecre), for its part, suggested in 2008 that ‘[i]n the context of a harmonised asylum system that fairly balances responsibilities’, the free choice of applicants might be the best basis for

7

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9 10 11

This is not a necessary implication to the extent that the wording of Article 78 could be interpreted as requiring access to at least one national status determination procedure should be guaranteed. un High Commissioner for Refugees (unhcr) Executive Committee, Conclusions on Refugees without an Asylum Country, No. 15 (xxx) excom Conclusions, 16 October 1979. On the broader context see A. Hurwitz, The Collective Responsibility of States to Protect Refugees (oup 2009) 17–30. On refugees in orbit see G. Melander, ‘Refugees in Orbit’ (1978) 16 awr Bulletin 59. unhcr, Revisiting the Dublin Convention: Some Reflections by unhcr in Response to the Commission Staff Working Paper, 19 January 2001, 5. Ibid 1ff. Ibid 5ff.

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responsibility allocation – the method best respecting ‘the intentions’ of applicants while maximising their cooperation and integration prospects.12 The Dublin system – the only allocation-system that has been tested so far in Europe – is the polar opposite of the ecre model, and it deviates quite significantly from the recommendations of unhcr. 2.2 The Defining Features of the Dublin System The three ‘principles underlying’ the Dublin system, and once more confirmed in 2013, are encapsulated in Article 3(1) dr iii. First: each application lodged by a third-country national with one of the Member States must be examined by one of them. This is the contribution made by the Dublin system to the ‘full observance of the right to asylum guaranteed by Article 18 of the Charter’ (Recital 39 dr iii) and it reflects the ‘main objective’ of the system according to the European Court of Justice (ecj): ‘to guarantee effective access to an assessment of the applicant’s [protection needs]’.13 Second: each application is to be examined, in principle, ‘by a single Member State’. Preventing the examination of ‘multiple applications’ filed with several Member States is in turn instrumental to: (a) reducing the aggregate effort required of Member State for processing the applications filed with them by third country nationals, and (b) preventing the latter from pursuing several applications in parallel or successively – a course of action presumed to constitute an ‘abuse’ and pejoratively dubbed ‘asylum shopping’.14 Third: the responsible State ‘shall be the one which the criteria set out [in the Regulation] indicate is responsible’. Such criteria are ‘objective’ (Recital 4 dr iii) in the sense that they apply for the most part independently from the (subjective) preferences of the applicant.15 They are not primarily based on  the  ‘close links’ that the applicants may have with a particular Member State, and they do not seek to match applicants with States in a manner that 12 13

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European Council on Refugees and Exiles (ecre), Sharing Responsibility for Refugee p­ rotection in Europe: Dublin Reconsidered, 31 March 2008, 30. Case C-648/11 ma and others [2013] ecli:eu:c:2013:367 para 54. See also S. Peers, ‘The Dublin iii Regulation’ in S. Peers, V. Moreno-Lax, M. Garlick and E. Guild (eds), eu Immigration and Asylum Law Volume 3: eu Asylum Law (2nd edn, Brill Nijhoff 2015) 351. For a critique see M. Mouzourakis, ‘We need to talk about Dublin. Responsibility under the Dublin System as a Blockage to Asylum Burden-Sharing in the European Union’ (2014) rsc Working Paper Series n. 105, 20ff. Only the application of three criteria based on family ties is conditional upon the express consent of the applicant and of the other concerned persons: see Articles 9, 10, 16. See also Article 17(2) dr iii.

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­maximises the prospects of integration. Instead, the criteria chosen are primarily the expression of a political bargain among the Member States in the context of the ‘progressive creation of an area without internal frontiers’ (Recital 25 dr iii). In the words of the Commission, the Dublin system is based on the principle that responsibility for examining an application for international protection lies primarily with the Member State which played the greatest part in the applicant’s entry into or residence on the territories of the Member States, subject to exceptions designed to protect family unity.16 Even a cursory presentation of the defining features of the Dublin system would be incomplete without mentioning a fourth key concept: ‘workability’, ‘efficiency’ and ‘quickness’ as qualities that are expected of the system and as benefits that the system is expected to generate for the ceas as a whole. Recital 5 dr iii notes that responsibility determination must be ‘rapid’ and must not ‘compromise the objective of the rapid processing of applications for international protection’. More generally, the ecj has observed that the Dublin system has been adopted in order to rationalise the treatment of asylum claims and to avoid blockages in the system as a result of the obligation on State authorities to examine multiple claims by the same applicant, and in order to increase legal certainty with regard to the determination of the State responsible for examining the asylum claim and thus to avoid forum shopping, it being the principal objective of all these measures to speed up the handling of claims in the interests both of asylum seekers and the participating Member States.17 2.3 What Evidence Suggests about the Functioning of the Dublin System The Dublin system has governed responsibility-allocation among an increasing number of European States – the 32 eu/efta Member States at the time of 16

17

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, com (2008) 820, 3 December 2008, 5 (emphasis added). See joined cases C-411/10 and C-492/10 ns and others [2011] ecli:eu:c:2011:865 para 79 (emphasis added).

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writing18 – since March 1995.19 While in the run-up to the 2003 ‘communautarisation’ alternative systems had been at least discussed,20 on the occasion of the 2013 recast there has been no debate of this kind. The Commission has simply taken note of the Member States’ lack of appetite for fundamental change and has promptly aligned itself to the ‘keep it and fix it’ stance reflected in Recital 9.21 This policy choice has been further cemented by the Stockholm Programme, where the European Council has stated that ‘[t]he Dublin system remains a cornerstone in building the ceas as it clearly allocates responsibility for the examination of asylum applications’.22 The political consensus supporting the Dublin system, only occasionally disturbed by disgruntled Member States,23 does not rest on good performance. Quite to the contrary: the common understanding is that the Dublin system ‘is 18

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The United Kingdom and Ireland have opted into the Dublin iii Regulation (Recital 41 dr  iii). Denmark and the four efta States have each concluded an ‘association’ Agreement to that effect: see Agreement between the European Community and the Republic of Iceland and the Kingdom of Norway Concerning the Criteria and Mechanisms for Establishing the State Responsible for Examining a Request for Asylum Lodged in a Member State or in Iceland or Norway, oj L 93, 03 April 2001; Agreement between the European Community and the Kingdom of Denmark on the Criteria and Mechanisms for Establishing the State Responsible for Examining a Request for Asylum Lodged in Denmark or any other Member State of the European Union and Eurodac for the Comparison of Fingerprints for the Effective Application of the Dublin Convention, oj L  66, 03 August 2006; Agreement Between the European Community and the Swiss Confederation Concerning the Criteria and Mechanisms for Establishing the State Responsible for Examining a Request for Asylum Lodged in a Member State or in Switzerland, oj L 53 27 February 2008; Protocol between the European Community, the Swiss Confederation and the Principality of Liechtenstein to the Agreement between the European Community, and the Swiss Confederation Concerning the Criteria and Mechanisms for Establishing the State Responsible for Examining a Request for Asylum Lodged in a Member State or in Switzerland, oj L 161, 24 June 2009. See n 1. See European Commission, Revisiting the Dublin Convention: Developing Community Legislation for Determining which Member State is Responsible for Considering an Appli­ cation for Asylum Submitted in one of the Member States. Commission Staff Working Paper, sec (2000) 522, 22 November 2010. European Commission, Proposal for a Regulation (n 16) 5. European Council, The Stockholm Programme – An Open and Secure Europe Serving and Protecting the Citizens, oj C 115/1, 4 May 2010, para 6.2.1. See also Recital 7 dr iii. See e.g. Common Declaration of the Minister of the Interior of the Republic of Cyprus, Vice Minister of the Interior of the Republic of Greece, Minister of the Interior of the Italian Republic and Minister of Justice and Internal Affairs of Malta, 13 January 2009 (‘Quattro paper’), 4; Council Document 10184/10 add 1, 26 June 2013, Statement no 3 by Greece.

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not working as it should’24 and, while there is still much that can be learned through the comprehensive ‘fitness check’ scheduled for 2016,25 the evidence accumulated over twenty years seems to confirm this. Statistical data – which have always been incomplete and should therefore to be taken with a grain of salt – provide a good starting point.26 According to the European Asylum Support Office (easo), approximately 12% of the asylum applications filed in the ‘Dublin area’ have given rise to a Dublin request between 2008 and 2013. Approximately 80% of these requests have been accepted, but only 30% of the agreed transfers have been effectively carried out. All in all, there were on average 3 transfers out of 100 applications lodged. Of these transfers, only 19% were ‘take charge’ transfers, i.e. the transfers that are ordered because the Dublin criteria indicate a State different from the one where the application is first lodged as responsible. The rest were ‘take backs’, i.e. transfers made to a State already examining or having rejected the application, in order to prevent the applicant from pursuing further applications in other States. Such data are roughly in line with those gathered in previous years27 and seem to reflect by and large the structural performance of the Dublin system. Even allowing for a vast margin of error, the data indicate two things: (a) the Dublin system, whose costs for the taxpayer are to-date undisclosed,28 is extremely inefficient: assuming as one should that a ‘Dublin procedure’ is run for every application filed with a Member State (see Article 20(1) dr iii), only a tiny minority of the hundreds of thousands of procedures carried out every year yields the tangible result of a transfer (in the order of 3%); even the 24

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European Commission, Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, A European Agenda on Migration, com (2015) 240, 13 May 2015, 13. See also S. Fratzke, ‘Not Adding Up: The Fading Promise of Europe’s Dublin System’ (2015) Migration Policy Institute Report; M. Mouzourakis (n 14); Odysseus, ‘Setting Up a Common European Asylum System’ (2010) European Parliament Study pe 425.622, 465ff. See Recital 9 dr iii. See European Asylum Support Office (easo), Annual Report on the Situation of Asylum in the European Union 2013, July 2014, para 2.6. The data published in easo, Annual Report on the Situation of Asylum in the European Union 2014, July 2015, para 2.6, are based on information from 21 out of 32 Dublin countries. The biggest recipient of Dublin requests and transfers in 2013, Italy (see n 46) is one of the States that has failed to provide information. The data are therefore too incomplete, to-date, to be taken into account. See e.g. European Commission, Evaluation of the Dublin Convention. Commission Staff Working Document, sec (2001) 756, 12 June 2001, 2–3. Fratzke (n 24) 15.

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procedures that culminate in a transfer decision yield an effective transfer in a minority of cases (around 30%); (b) contrary to all assumptions underpinning the Regulation, and contrary to the ringing endorsement of the Stockholm Programme, the Dublin criteria do not ‘allocate responsibility’ in any statistically significant sense: as ‘take charge’ transfers happen in a microscopic minority of cases, the only possible conclusion is that applications are examined where they are first lodged in the crushing majority of cases (something in the order of less than 1% vs more than 99% of the cases). This revokes into question whether it is worthwhile to use the Dublin criteria at all. The inefficiency and inefficacy of the system reportedly have much to do with the lack of cooperation of protection seekers. In order to avoid being transferred, many resort to litigation, absconding, or even self-harm;29 many, once transferred, travel back or travel onto their preferred destination30 – a remarkable result for a measure that should have improved control on ‘secondary movements’. Such widespread resistance is the direct consequence of two defining features of the Dublin system. First, as noted, the system disregards by design ‘the intentions of the asylum-seeker as regards the country in which he wishes to  request asylum’, and the criteria take limited account of the ‘close links’ the applicant may have with Member States, giving instead decisive weight to circumstances that applicants (understandably) regard as irrelevant (e.g. the point of entry in the Dublin area chosen for them by a smuggler).31 Secondly, the principle that each application is to be examined by a ‘single Member State’ 29

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See e.g. European Commission, Revisiting the Dublin Convention (n 20) para 44(f); J. Van Selm, ‘European Refugee Policy: Is There Such a Thing?’ (2005) unhcr New Issues in Refugee Research, Research Paper No. 115, 14; unhcr, The Dublin ii Regulation – A unhcr Discussion Paper, April 2006, 22; cimade, Gens de Dublin ii, December 2008, 22 f; Jesuit Refugee Service (jrs), Dublin ii: A Summary of jrs Experiences in Europe, October 2008, 3; European Commission, Commission Staff Working Document Accompanying the 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 – Impact Assessment, sec (2008) 2962, 3 December 2008, 20; jrs, Protection Interrupted: The Dublin Regulation’s Impact on Asylum Seekers’ Protection (The diasp Project), 4 June 2013, 48ff and 56; Fratzke (n 24) 12. ‘On average, our interviewees had made four to five trips between member States prior to their diasp interview. If people are not where they want to be, then move onward, travelling until they reach an eu country where they want to submit their asylum claim’ (jrs, Protection Interrupted (n 29) 6). For the observation that many of the Dublin criteria – issuance of a visa, entry or irregular stay – are ‘inappropriate’ as criteria for the allocation of responsibility, see unhcr, Revisiting the Dublin Convention (n 9) 5.

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degenerates, in the current state of the ceas, in an ‘asylum lottery’.32 Referring to eu harmonisation measures in the area, the European Court of Justice has observed that ‘the rules in accordance with which an asylum seeker’s application will be examined will be broadly the same, irrespective of which Member State is responsible’.33 With due respect, this statement is legally inaccurate34 and more importantly factually unfounded: protection practices still differ to such an extent in the Dublin area that it matters very much to protection seekers ‘which Member State is responsible’ for their application.35 The strong incentives to circumvent the system, and the ensuing widespread resistance opposed by applicants to its operation, entail a number of negative consequences. First, several Member States respond by routinely using detention and escorted transfers, with a further increase of the human and financial costs involved.36 Secondly, widespread avoidance of the Dublin system ends up undermining the central policy goal of providing swift access to status determination. Applicants may seriously undermine their own claim to protection in their attempts to escape the system. Worse still, there is abundant anecdotal evidence of protection seekers refusing to file an application in the ‘wrong’ State and eventually absconding for good in order to avoid transfer.37 32 33 34

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ecre, Dublin ii Regulation. Lives on Hold: European Comparative Report, February 2013, 15. Case C-394/12 Abdullahi [2014] ecli:eu:c:2013:813 para 55. Only 25 out of 32 ‘Dublin Member States’ are fully bound by the eu acquis on asylum. Under the terms of their association to Dublin (see n 18), the four efta States and Denmark are not bound by the eu asylum Directives. The United Kingdom and Ireland have declined to opt into the recast Directives of 2011 and 2013, and Ireland has accepted no eu obligation in the field of reception. For a useful overview, see Fundamental Rights Agency (fra) / ECtHR, Handbook on European law relating to asylum, borders and immigration, June 2013, Annex 1. easo, Annual Report 2014 (n 26) para 2.4.2. easo argues that disparities in the recognition rates for applicants having the same nationality ‘[do] not necessarily point towards a lack of harmonisation across [Member States] […] but may rather indicate different profiles of applicants who have the same citizenship’. Though theoretically valid, the point is not particularly convincing in light of both the breadth of the disparities reported and of qualitative case-studies documenting in detail diverging practices (see unhcr, Asylum in  the European Union – A Study of the Implementation of the Qualification Directive, 1 November 2007; see also the contributions to this volume by V. Chetail, Section 2.2, and by M. Garlick, Section 4). On the use of coercion in Dublin procedures see the contribution by M. Garlick to this volume, Section 5.2. On the financial costs involved, see Fratzke (n 24) 15. In 2001, commenting on the low transfer rates under the Dublin Convention, the Commission observed that ‘a certain “evaporation” occurs, resulting in the creation of a pool of aliens, most often in an unlawful situation, who have expressed their intention

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This defeats the objective of ‘offering appropriate status to any third-countrynational requiring international protection’ (Article 78(1) tfeu)38 as well as the objective of ‘prevent[ing] […] illegal immigration’ (Article 79(1) tfeu). As for swift access to asylum procedures, there is unfortunately no available data on the average duration of Dublin procedures, although it is commonly observed that such procedures may leave applicants in a limbo for prolonged periods of time.39 It is at any rate telling that a Dublin procedure may ‘under normal circumstances, take up to 11 months’,40 i.e. approximately twice as much as the time normally allowed by the recast Asylum Procedures Directive for first instance asylum procedures.41 A further cause of the poor performance of the Dublin system appears to be insufficient cooperation among the Member States. That, too, has its cause deep in the structure and ethos of the Dublin system. Centred on ‘transferring’ applicants elsewhere, i.e. on shifting the ‘burden’ of their reception to other Member States, Dublin creates winners and losers in a game in which success is measured in terms of ‘net flows’,42 pitting national interests one against

38

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to apply for asylum but whose application will not be examined either in the Member State where they lodged it, which is not responsible, or in the Member State responsible, to which they have not travelled’ (European Commission, Evaluation of the Dublin Convention (n 27) 3). See also ecre, Enhancing Intra-eu Solidarity Tools to Improve Quality and Fundamental Rights Protection in the Common European Asylum System, January 2013, 25; A. Guillot, ‘Plus de 100 réfugiés syriens font la grève de la faim au centre d’Athènes’, Le Monde (Paris, 4 December 2014) accessed 31 March 2015. See also European Commission, Commission Staff Working Document Accompanying the Document: Communication from the Commission to the European Parliament and the Council, 5th Annual Report on Immigration and asylum (2013), com(2014) 288 Final, 22 May 2014, 8: ‘The ceas will provide better access to the asylum procedure for those who seek protection’. Fratzke (n 24) 18; jrs, Protection Interrupted (n 29) 6. See Commission Regulation No. 1560/2003 of 2 September 2003 laying down detailed rules for the application of Council Regulation No. 343/2003 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, oj L 222, 5  September 2003 as modified by the Commission Implementing Regulation (eu) No. 118/2014 of 30 January 2014, oj L 39/1, 8 February 2014, Annex x. 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), oj 180/60, 29 June 2013, Article 31(3). For a particularly eloquent example see Swiss Federal Office of Migration, Accord de Dublin: Bilan positif pour la Suisse, Press Release, 7 April 2009.

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the other rather than pursuing a rationally defensible matching of applicants and States. The best-known example is the alleged failure of border States – notably Italy during the Mare Nostrum operation – to systematically fingerprint persons apprehended while irregularly border-crossing, and thus to shoulder all their responsibilities.43 Accepting the facts as established for the sake of the argument, that would certainly be a violation – even a systematic violation – of the Eurodac Regulation,44 further undermining the efficacy of the Dublin system. However, in light of the skewed bargain underlying the Dublin criteria,45 it is also an entirely predictable violation. While Recital 25 dr iii evokes ‘strik[ing] a balance between responsibility criteria in a spirit of solidarity’, the Dublin system is based on the opposite principle that responsibility is allocated primarily on the basis of irregular entry.46 This criterion self-evidently 43

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See e.g. European Commission, Report from the Commission to the European Parliament and the Council on the evaluation of the Dublin system, com (2007) 299 final, 6 June 2007, 9; Letter to Commissioner Malmström from the Ministries of Interior of Spain, France, Germany, the United Kingdom and Poland, 9 September 2014; European Commission, A European Agenda on Migration (n 24) 6 and 13. More open accusations were formulated in parliamentary debates and in the press: see the contribution by M. Garlick to this volume, Section 5.2; see also e.g. Interpellation No. 14.3977, Pourquoi la Suisse ne réagit-elle pas contre la violation des traités par l’Italie, 26 September 2014 accessed 23 July 2015. 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 inter­ national 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), oj L 180/1, 29 June 2013, Article 14. On the circumstances of the acceptance of such bargain by Italy and Greece, see J.P. Aus, ‘Logics of Decision-making on Community Asylum Policy – A Case Study of the Evolvement of the Dublin ii Regulation’ (2006) arena Working Paper No 3. It should be noted that in the hierarchy of Dublin criteria (Articles 3(2) and 7–16 dr iii) irregular entry is not the first criterion. Yet the criteria preceding it are either restrictively defined – that is the case of the family criteria (see below Section 3.2.1) – or based on circumstances that are presumably less frequent than irregular entry – e.g. the issuance of a residence document or visa to the applicant. Statistics seems to support the statement that irregular entry is the main criterion. There are no reliable data showing how frequently each criterion is applied (as noted, the data for 2014, which are disaggregated by

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lacks justification from the standpoint of the ‘close links’ between applicant and State.47 On closer inspection, it cannot be justified either by reference to any ‘responsibility’ of the concerned State for the presence of the applicant in the Dublin area. When ‘mixed flows’ concentrate on some sections of the Schengen external borders, the concerned State can normally follow only only legitimate and practicable course: stay deportation, or as the case may be disembark on national soil after rescue or interception, and allow for the lodging of a protection claim.48 In such situations, allocating responsibility on the basis of irregular entry effectively amounts to allocating responsibility on the basis of geographical position. This is patently contrary to any conceivable conception of ‘fair sharing of responsibilities’ and capable of producing the most severe imbalances in the distribution of protection seekers especially in the circumstances of, say, Greece in 2009–2010 and Italy in 2013–2014.49 The observation that Dublin does not in reality entail a significant transfer of applicants to border States50 is beside the point. Actual transfers are relatively few because as noted, the system is extremely inefficient. If the criteria were ­effectively applied, the picture would be starkly different: in 2010 Greece was

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criterion, are too incomplete at the time of writing: see n 26). In past years, however, the agreed application of the criteria regularly resulted in allocating the largest share of responsibility to border States, especially Mediterranean States serving as the main entry point for undocumented migrants in Europe (data from Eurostat: Decisions on incoming ‘Dublin’ requests by submitting country and type of request , adjusted to display only accepted take charge requests, accessed 23 July 2015). In 2010, Greece was at the receiving end of 52% of all take charges agreed in the Dublin area at a time when it accounted for nearly 90% of detected irregular border crossings in the eu (fra, Coping with a Fundamental Rights Emergency. The Situation of Persons Crossing the Greek Land Border in an Irregular Manner, 2011, 4). In 2013, Italy alone was at the receiving end of about 40% of all agreed take charges at a time when the Central Mediterranean Route was the main route for undocumented entry in the eu (Frontex, Annual Risk Analysis 2014, May 2014, 31). It is reasonable to assume that most of these agreed take charges were based on irregular entry. unhcr, Revisiting the Dublin Convention (n 9) 5. See in particular Hirsi Jamaa and Others v Italy Appl no 27765/09 (ECtHR, 23 February 2012). See also V. Moreno Lax, ‘Hirsi Jamaa and Others v Italy or the Strasbourg Court versus Extraterritorial Migration Control?’ (2012) 12 hrlr 598; A. Epiney and A. Egbuna-Joss, ‘Regulation (ec) No. 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)’ in K. Hailbronner and D. Thym, eu Immigration and Asylum Law: A Commentary (2nd edn, Hart forthcoming), comment to Article 1, para 12ff. See n 46. European Commission, Evaluation of the Dublin System (n 43) 12; Fratzke (n 24) 1.

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at the receiving end of 52% of all agreed take charges in the Dublin area; in 2013, after Greece was effectively severed from the Dublin system by the mss judgment,51 Italy alone was at the receiving end of about 40% of all agreed take charges.52 In light of the anticipated effects of Dublin, of the sheer numbers of persons rescued or detected that ought in principle be fingerprinted and at a later stage taken charge of,53 and of the paucity of countervailing ‘solidarity’ measures,54 it is hardly surprising that border States try to shirk their responsibilities by sabotaging the Dublin game – or by resorting to worse measures that usually fail to attract comparable criticism from other States.55 But it would be mistaken to believe that responsibility-shirking or – shifting is a Mediterranean trait. A ‘beggar-thy-neighbour’ attitude seems to pervade State-to-State interaction under the Dublin system, so that States will generally do their utmost to minimise their responsibilities56 and to maximise others’ responsibilities,57 including by piling requests on patently ‘failed’ national asylum systems with callous disregard for the rights of applicants and for the wellfunctioning of the ceas as a whole.58 51 52 53

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56 57

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mss v Belgium and Greece Appl no 30696/09 (ECtHR, 21 January 2011). See n 46. The Italian Navy reportedly rescued more than 150’000 migrants between October 2013 and October 2014: accessed 23 July 2015. See the contribution by M. Garlick to this volume, Section  3. See also R. Bieber and F. Maiani, ‘Sans solidarité point d’Union européenne. Regards croisés sur les crises de l’Union économique et monétaire et du Système européen commun d’asile’ (2012) Revue trimestrielle de droit européen 323 ff. See e.g. P.N. Papadimitriou and I.F. Papageorgiou, ‘The New “Dubliners”: Implementation of European Council Regulation 343/2003 (Dublin-ii) by the Greek Authorities’, (2005) 18 jrs 301, especially at 309ff; see also, on the Italian push-back practice, ECtHR, Hirsi Jamaa and Others v Italy (n 48) and Moreno-Lax (n 48). E.g. by restrictively accepting evidence of own responsibility: see European Commission, Evaluation of the Dublin System (n 43) 7ff. Based on reports from practitioners, on file with the author, it would appear that unfounded or unsubstantiated requests are sent to border States in the expectation that, by failing to reply within the set deadline, they become responsible by default based on Article 22(7) dr iii. The classic example in this respect is Greece, which was the main addressee of take charge requests in 2009–2010, at a time when it was agreed that it ‘was […] the point of entry in the European Union of almost 90% of illegal immigrants’ and ‘[unable] to cope with the situation in practice’ (C-411/10 and C-492/10 ns and others (n 17) para 87). See also the account of the 2014 Bulgarian crisis in the contribution by M. Garlick to this volume, Section 4.

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To sum up, the failures of the Dublin system seem to derive principally from the incentive to evade or abuse which it gives to its key actors – protection seekers and Member States alike. In turn, such bad incentives stem directly from the defining features of the Dublin system, i.e. the chosen responsibility criteria and the ‘single Member State’ principle, combined with the current structural weaknesses of the ceas, i.e. the lack of a level protection field and the absence of meaningful solidarity measures. If that is correct, there is no reason to believe that a new Regulation retaining the same basic principles – amended though it may be in the details – may ‘mak[e] the necessary improvements, in the light of experience, to the effectiveness of the Dublin system and the protection granted to applicants under that system’, as contended by Recital 9 (emphasis added). More likely, Dublin iii will by and large replicate the performance of its predecessors, while raising very much the same human rights concerns – interference in family life, widespread use of coercion, impaired access to procedures etc. 3

The ‘Improvements’ to Be Found in the Recast Regulation

While incapable of fundamentally changing the dynamics of the Dublin ­system, the ‘improvements’ brought about with the recast Regulation might alleviate the fundamental rights concerns just mentioned. They are examined here, starting with two changes that have a horizontal impact on the whole system: an enlarged scope of application and, more importantly, a strongly human-rights oriented preamble (3.1). The hierarchy of criteria has remained largely unchanged, subject to a welcome although insufficient enlargement of the criteria based on family ties (3.2).59 A more resolute effort has been done in reforming Dublin procedures as such, and this has resulted in particular in the introduction of stronger procedural rights and of new safeguards against detention (3.3). Concerning access to status determination procedures and protection against refoulement, the Regulation introduces better guarantees and explicitly acknowledges the possibility that Dublin transfers may be impermissible on account of risks in the responsible State, although in doing 59

Note however that the start of operations of the Visa Information System is expected to significantly facilitate the application of the criteria based on the issuance of a visa (see Regulation (ec) No. 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (vis) and the exchange of data between Member States on short-stay visas, oj L 218/60, 13 August 2008 (vis Regulation), Articles 21 and 22; Recital 31 dr iii).

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so it codifies the unhelpful approach adopted by the European Court of Justice in ns and subsequent cases (3.4). Finally, the Regulation introduces a ‘mechanism for early warning, preparedness and crisis management’ (3.5). 3.1 Horizontal Changes 3.1.1 Enlarged Scope While the Dublin ii Regulation was only applicable to applications (and applicants) for ‘asylum’, i.e. recognition of refugee status,60 the Dublin iii Regulation covers applications (and applicants) for ‘international protection’, i.e. refugee status and subsidiary protection.61 This was a natural step to take in order ‘to ensure equal treatment for all applicants and beneficiaries of international protection, and consistency with the current Union asylum acquis’ (Recital 10 dr). As far as extending the scope of the Regulation is concerned, however, the innovation is more conceptual than practical: under the old Regulation, applications would be excluded only if ‘explicitly request[ing] another kind of protection that can be applied for separately’, and practically no Member State allowed for such separate applications.62 By contrast, precisely because it is now based on the notion of ‘international protection’, the recast entails a tangible reduction of the scope of the Dublin system. Under the old rules, persons having been recognized as refugees in a Member State and applying for asylum in a second Member State were deemed not to fall under the Regulation. This interpretation found support in Article 16(1) dr ii, which only foresaw a ‘take back’ transfer for persons whose application for asylum was pending, or had been withdrawn or rejected,63 and in Article 25 of the old Procedures Directive,64 which treated the granting of ‘refugee status’ by another Member State as an inadmissibility ground distinct from and additional to those flowing from the Dublin ii Regulation. Such reasoning did not necessarily apply to persons granted subsidiary status, who could in fact be considered as persons whose claim to refugee status (‘application for asylum’) had been rejected. As a result, several Member States resorted 60 61 62 63 64

See Articles 1, 2(c) and 3(1) dr ii. Articles 1, 2(b) and 3(1) dr iii. See European Commission, Commission Staff Working Document – Dublin iii Impact Assessment (n 29) 21. See C. Filzwieser and A. Sprung, Dublin iii-Verordnung: Das europäische Asylzuständig­ keitssystem (Neuer Wissenschaftlicher Verlag 2014) 87, para K22. Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, oj L 326/13, 13 December 2005.

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to Dublin to send back these persons to the Member State having granted ­protection.65 This is no longer possible under the Dublin iii Regulation. On the one hand, Article 18 dr iii exclusively contemplates sending back persons whose application ‘for international protection’ is pending, has been withdrawn or has been rejected. On the other hand, Article 33(2)(a) of the recast Asylum Procedures Directive66 now treats the granting of ‘international protection’ by another Member State as an independent inadmissibility ground.67 One last remark on the scope of Dublin system concerns the applicability of the Kastrati judgment under the new Regulation. In Kastrati, the ecj ruled that the applicability of the Dublin ii Regulation ‘presuppose[d] the existence of an […] application which the Member State responsible must examine, is in the process of examining or on which it has already taken a decision’, and concluded that the withdrawal of the application before any Member State had taken charge of it, and without the presentation of a new application, entailed the inapplicability of the Regulation.68 This interpretation is no longer valid under the Dublin iii Regulation, which expressly provides for the transfer of persons who have withdrawn their application without lodging a new application (Articles 18(1)(c) and 24 dr iii). 3.1.2 A Human-Rights Oriented Preamble While the fundamental tenets and objectives of the Dublin system are un­changed, and Recitals 9 and 29 dr iii stress continuity as a leitmotiv of the recast process, the spirit of the new Regulation as expressed in its preamble differs significantly from that of the old Regulation. Apart from updates and clarifications to the technical recitals (see e.g. Recital 31) and from a couple of interesting references to solidarity (Recitals 8 and 22), the preamble places an unprecedented emphasis on the rights and interests of the applicant. In a rather ‘impressive’ new catalogue, to borrow 65

66

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68

See e.g. Swiss Federal Administrative Tribunal, Judgment of 24 April 2012, D-6273/2011, para 6; see also the facts of Mohammed Hussein and Others v The Netherlands and Italy Appl no 27725/10 (ECtHR, 2 April 2013). 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), oj L 180/160, 29 June 2013. For a different position, which however seems to disregard the elements just recalled, see M.  Funke-Kaiser, ‘Personen mit Schutzstatus in einem anderen eu-Land – Rechtliche Probleme’ (2015) Asylmagazin 148. Case C-620/10 Kastrati [2012] ecli:eu:c:2012:265 para 45.

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the terms used by Ulrike Brandl,69 no less than thirteen recitals elaborate on the human dimension of the Dublin system. The new approach is apparent from the recitals that open this ‘catalogue’. Whereas the legislator of 2003 maintained that ‘[f]amily unity should be preserved in so far as this is compatible with the other objectives pursued’ by the Dublin system (Recital 6 dr ii), the legislator of 2013 stresses that the best interest of the child and respect for family life within the meaning of the European Convention for the Protection of Human Rights and Fundamental Freedoms (echr) and of the eu Charter of Fundamental Rights (cfr) must be ‘primary considerations’ when applying the Regulation (Recitals 13 and 14). Whereas the legislator of 2003 justified ­processing together the applications of members of the same family purely on efficiency grounds (Recital 7 dr ii), the legislator of 2013 also emphasises that this allows members of the same family not to be separated (Recital 15 dr iii). Other recitals recommend to apply the discretionary clauses ‘in particular on  humanitarian and compassionate grounds’ (Recital 17 dr iii), provide a perspective on the new procedural guarantees (Recitals 18–20, see below Section 2.3), stress the risks posed to the rights of applicants by deficiencies in the asylum systems of Member States (Recital 21 dr iii), and touch on the protection of dignity and health in transfer operations (Recitals 24 and 27 dr iii). On the general theme of respect for human rights, Recital 32 reserves the international obligations of Member States as Recital 12 dr ii did, and explicitly adds that Member States are also bound by ‘the relevant case-law of the European Court of Human Rights’. Furthermore, Recital 39 greatly develops the old ‘Charter Recital’ (Recital 15 dr ii) by stressing that the Regulation seeks to ensure the full observance not only of Article 18 cfr (right to asylum), but also of Articles 1 (dignity), 4 (prohibition of torture), 7 (right to private and family life), 24 (rights of the child) and 47 (rights to an effective judicial remedy), and that it should be interpreted accordingly. It would be tempting to dismiss these changes as consolatory rhetoric placed on top of provisions that are still riddled with loopholes and inconsistencies precisely in the matter of fundamental rights. But such a stance would miss the main point, at least from a legal perspective. Preambles play a key role in the interpretation of eu legislation.70 The preamble of the Dublin iii Regulation is therefore a precious tool to support a human-rights oriented interpretation of the Regulation and to correct, at the implementation stage, the abovementioned loopholes and inconsistencies. As confirmation that this 69 70

See the contribution of U. Brandl to this volume, Section 4. See e.g. joined cases C-509/09 and C-161/10 eDate Advertising [2011] ecli:eu:c:2011:685, para 55.

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is exactly the effect intended by the legislator, it is perhaps worth stressing that  all the rights-related recitals of the preamble are addressed explicitly or  implicitly to the authorities entrusted with the implementation of the Regulation. 3.2 Enlarged Family Criteria 3.2.1 The Reform of the ‘Ordinary’ Family Criteria Narrowly drafted and restrictively applied, the family-based criteria of the Dublin ii Regulation have failed to offer meaningful protection to family unity. As recalled in the contributions to this volume by Ulrike Brand and Madeline Garlick, this is established both by statistical data showing minimal impact and by an ever-expanding and disturbing catalogue of cases involving couples separated after the birth of their child, suicidal women deprived of the support of their relatives, children inflexibly torn apart from their parents, etc.71 Providing a better protection for families was therefore one of the objectives of the recast process.72 As we will see immediately, there is progress, but the new Regulation falls considerably short of solving all outstanding issues, and it will take a determined effort at the stage of implementation for improvements to become tangible. Said progress chiefly consists in the fact that the new Regulation relaxes somewhat, article by article and clause by clause, the two parameters used to delimit the scope of the family criteria, i.e. the applicable definition of family and the requirements relating to the status of the applicant’s relations already present in a Member State. Apart from small adjustments – e.g. the amendment of the general definition of ‘family member’, which now includes the minor unmarried children of the applicant regardless of whether they are ‘dependent’ (Article 2(g) dr iii) – three innovations stand out: (A) Article 8 dr iii, the successor to Article 6 dr ii, includes greatly expanded family criteria for the case in which the applicant is an unaccompanied minor. Responsibility is henceforth allocated to the State where a ‘family member’ within the meaning of Article 2(g), a ‘sibling’ or a ‘relative’73 are legally present. The catalogue is completed by the p ­ arents 71

72 73

See the contribution by U. Brandl to this volume. For a fuller discussion of the points made in this section, see F. Maiani, ‘L’unité de la famille sous le Règlement Dublin iii: du vin nouveau dans de vieilles outres’ in S. Breitenmoser, S. Gless and O. Lagodny (eds), Schengen et Dublin en pratique – questions actuelles (Dike, 2015), 277. European Commission, Proposal for a Regulation (n 16) 6 and 8ff. I.e. a grandparent, aunt or uncle (Article 2(h) dr iii).

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of married minors, who would otherwise be excluded since they are not ‘family members’ of the minor under the terms of Article 2(g). Article 6(4) furthermore places upon the determining Member State the obligation to ‘take appropriate action to identify the family members, siblings or relatives […] on the territory of the Member States’.74 In deciding whether the family criteria apply, and which one applies if several options are available, the best interest of the child is the controlling factor: very appropriately, the legislator has refrained from establishing a fixed hierarchy among family relations leaving the choice to a case-by-case assessment by the competent authorities (Article 8(3) dr iii).75 If no relation is legally present in the territory of a Member State, or if reunification would not be in the best interest of the child, the Member State where the application has been lodged is responsible (Article 8(4) dr iii). This default criterion must be interpreted in light of the MA judgment,76 and a proposal to amend Article 8(4) with a view of codifying and supplementing the judgment is pending before the Parliament and Council at the time of writing.77 (B) Articles 9 and 10 dr iii correspond exactly to old Articles 7 and 8 dr ii, save for the fact that they allocate responsibility based on the admission of a family member as a ‘beneficiary of international protection’ and on the presence of a family member as ‘applicant for international protection’, whereas the old criteria referred to ‘refugees’ and applicants ‘for asylum’.78 74 75

See Article 12(3) of Regulation 1560/2003 as amended by Regulation 118/2014 (n 40). For a contrary view, see Filzwieser and Sprung (n 63) 123, para K13. See however the explicit provisions of Article 12(5) of Regulation 1560/2003, as amended by Regulation 118/2014 (n 40). 76 C-648/11, ma and others (n 13). 77 European Commission, Proposal for a Regulation amending Regulation (eu) No. 604/2013 as regards determining the Member State responsible for examining the application for international protection of unaccompanied minors with no family member, sibling or relative legally present in a Member State, com (2014) 382, 26 June 2014. 78 In the States that are not bound by eu harmonisation measures and do not autonomously apply the eu concept of subsidiary protection, the application of Article 9 requires in principle a case-by-case examination of whether the family member was admitted on grounds comparable to those that are set out in Article 15 of the recast Qualification Directive (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), oj L 337/9, 20 December 2011). See in particular Swiss Federal Council, Message relatif à l’approbation et à la mise en oeuvre des échanges de notes entre la Suisse et

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This is a welcome progress: the exclusion of beneficiaries of subsidiary protection entailed an unjustified difference of treatment as well as a risk of long-term separation.79 The fact that several Member States grant subsidiary protection more frequently that refugee status further enhances the practical importance of the amendment.80 (C) Article 11 dr iii, corresponding to old Article 14 dr ii on the ‘family procedure’, now encapsulates a slightly enlarged definition of family, including ‘minor unmarried siblings’ alongside ‘family members’ within the meaning of Article 2(g) dr iii. As welcome as they are, these changes leave many of the old problems standing. No steps have been taken to induce national authorities to accept more readily proof of the existence of family ties – one of the key problems observed under the Dublin ii Regulation.81 Furthermore, the reach of the criteria remains limited. Two important horizontal limitations remain, in particular. First, the generally applicable definition of ‘family member’ is still very restrictive, encompassing as it does only ‘nuclear family’ relations that existed in the ‘country of origin’ (see Article 2(g) dr iii). The latter condition, which draws a sharp distinction between family ties formed ‘pre-flight’ and family ties formed ‘post-flight’, as if the latter were inherently less worthy of protection, may if applied rigidly lead to violations of Article 14 echr.82 Secondly, the ‘freezing rule’ according to which the criteria must be applied by reference to the situation that existed when the first application was lodged is fully applicable to the family criteria (see Article 7(2) dr iii). This may exclude the applicability of the family criteria – and thus adversely affect family unity – on account of events that are purely fortuitous or beyond the control of the concerned persons (e.g. the fact that international protection is granted on appeal to a family member mere days after the first claim of the applicant has been filed: see Article 7(2) combined with Articles 9 and 10).83

79 80 81 82 83

l’UE concernant la reprise des règlements (ue) No. 603/2013 et No. 604/2013 (Développe­ ments  de l’acquis de Dublin/Eurodac), Feuille fédérale 2014 2587, 2608; Swiss Federal Administrative Court, judgment of 1 July 2015 E-4620/2014, paras 3.8 and 3.9. See F. Maiani, Unité familiale et système de Dublin (Helbing & Lichtenhahn 2006), 170, 172 and 290ff. easo, ‘Annual Report 2014’ (n 26), figures 15 and 16. See in particular European Commission, Evaluation of the Dublin System (n 43) 6; ecre, Dublin ii Regulation. Lives on Hold (n 32) 7 (Executive Summary) and paras 9.3.1, as well as 32 and 35. Hode and Abdi v United Kingdom Appl no 22341/09 (ECtHR, 6 November 2012) para 55. For further examples, see Council, Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member

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In addition to the problems inherited from the Dublin ii Regulation, the recast Regulation raises a number of new issues. In reforming the family-based criteria, the legislator has engaged in clause-by-clause tinkering instead of basing all the criteria on a new and enlarged definition of ‘family member’ as originally proposed by the Commission.84 This piecemeal approach has ended up multiplying the ‘family’ definitions – there are six for six criteria85 – and the opportunities for arbitrary or unjustified distinctions. To be sure, the old criteria already had potential in this respect – think e.g. of Article 20(3) dr iii, unchanged, which protects the family tie between parent and child if the latter is born in the country of origin or in the Dublin area, but not if she is born en route to Europe in a transit country. But the recast Regulation takes this penchant for contradiction to a whole new level. For example, the condition that the family tie must have existed in the country of origin will apply for the purpose of bringing together an unmarried and unaccompanied minor and his ‘legally present’ mother (Article 2(g) combined with Article 8). It will not apply, however, for the purpose of bringing the same child together with his aunt (Article 2(h) combined with Article 8). Nor will it apply to reunite mother and child if the child is married (see Article 8). Besides, while Article 8 protects the family tie between a married child and his parents, Article 20(3), whose purpose is to prevent an accompanied minor from becoming unaccompanied, does not. The result is that a married unaccompanied minor must be brought together with his mother if they are apart, but may be separated from her if they are already together. In the same vein, Article 8 guarantees that an unaccompanied minor, married or unmarried, may be brought together with a legally present sibling without further conditions. However, if the very same unaccom­panied minor arrives together with his sibling, Article 11 guarantees that they are kept together only if they are all minor and unmarried.

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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, Doc. 12364/09, 27 July 2009. See European Commission, Proposal for a Regulation (n 16) Article 2(i). The general ‘family member’ definition of Article 2(g) applies unchanged only in the context of Article 10. Three provisions apply the same definition with some variations: Article 9 (‘regardless of whether the family was previously formed in the country of origin’), Article 11 (‘family members’ plus ‘minor unmarried siblings’) and Article 20(3) (minor and accompanying adult that are ‘family members’ plus ‘children born after the applicant arrives on the territory of the Member States’). Article 8 adopts its own extensive definition on family examined above, and Article 16 adopts another special definition of family examined below (Section 3.2.2).

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Further examples could be found, but the point has hopefully been made that under the new Regulation as under the old, the criteria protecting family unity fall well short of doing so comprehensively and that, if applied mechanically and literally, they are liable of causing applicants and their families severe hardship and of giving rise to arbitrary distinctions, including to violations of the right for respect to family life and of the right to the equal enjoyment thereof.86 Beyond human rights considerations, such a result would contradict the expressed will of the legislator that the best interest of the child and respect for family life must be ‘primary considerations’ for the authorities implementing the Regulation (see above 3.1.2). A literal interpretation and application of the Regulation and of its family criteria is therefore impermissible. First of all, interpretations must be sought that can reconcile the very imperfect wording of the Regulation with the principles and objectives that underlie it, including full respect for human rights standards. To give but one example, the condition that family ties must have existed in the country of origin may only be reconciled with Article 14 echr if connected to a public interest justifying the distinction it draws between families formed ‘pre-flight’ or ‘postflight’. In our case, apparently, the public interest pursued is to prevent ‘abuse’ i.e. to prevent applicants from manipulating the criteria by forming family ties.87 Since disregarding all family ties formed after the departure from the country of origin would be patently disproportionate, the condition ought in my view to be reinterpreted through teleological reduction,88 – against its letter but in conformity with its objective and with superior law – as a clause permitting to disregard family ties that were demonstrably created for the purpose of circumventing the Dublin criteria. Once the possibilities offered by the commonly accepted methods of interpretation of eu Law are exhausted, resort may be had to the discretionary clauses of Article 17 in order to ensure, again, that the Regulation is applied in conformity with its underlying principles and with superior law.89 Indeed, as 86

87 88 89

See however, for a disquietingly restrictive interpretation of the demands placed by Article 8 echr on ‘Dublin’ authorities, as v Switzerland Appl no 39350/13 (ECtHR, 30 June 2015) para 44ff. Filzwieser and Sprung (n 63) 89, para K26. On teleological reduction in eu Law, see K. Leanerts and J. Gutierrez, ‘To Say What the Law of the eu Is’ (2013), Working Paper eui ael 2013/09, 28. This is, indeed, the classic remedy to the shortcomings of the Regulation: see e.g. Filzwieser and Sprung (n 63) 157ff. I have elsewhere explained my disagreement with the opinion expressed by the authors that the discretionary clauses should be used sparingly in order to ensure the effet utile of the Regulation: see C. Hruschka and F. Maiani, ‘Regulation (eu) No. 604/2013 of the European Parliament and of the Council of 26 June

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the Commission itself has recalled, ‘the rules need to be applied in full’ and Member States, who are ‘responsible for applying the Dublin system’, should in particular ‘proactively and consistently apply the clauses related to family reunification, and make a broader and regular use of the discretionary clauses’,90 especially when the objectives and principles set out in the preamble of the Regulation are at stake. 3.2.2 The Puzzle of Article 16 Another innovation of the Dublin iii Regulation, which can hardly be called a ‘progress’ for reasons that will become immediately apparent, is the introduction of a new responsibility criterion applying in situations of dependency. Former Article 15(2) dr ii provided that the applicant and his or her ‘relative’ should ‘normally’ be kept or brought together when one was dependent on the other on account of e.g. pregnancy. The provision was part and parcel of the ‘humanitarian clause’ and thus in principle optional. In the K judgment of 6 November 2012, however, the ecj ruled that Member States had the obligation to keep or bring together the applicant and his or her relative – an open notion encompassing e.g. mothers-in-law – save in ‘exceptional situations’.91 When the judgment was rendered, negotiations on the new criterion due to replace Article 15(2) dr ii were already closed in substance.92 The Commission had originally proposed to simply turn Article 15(2) dr ii into a fully-fledged responsibility criteria. In order to accept this transformation, the Member States had first understandably requested a more precise text, and had then started to impose increasing restrictions on the scope of the provision.93 The end result, Article 16 dr iii, is a strange object. Despite being placed outside of

90 91 92

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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)’ in K. Hailbronner and D. Thym, eu Immigration and Asylum Law: A Commentary (2nd edn, Hart forthcoming), comment to Article 17. The more liberal view finds at least indirect support in ecj case-law (case C-528/11 Halaf [2013] ecli:eu:c:2013:342, para 36) and in the statements of the Commission reported immediately below in the text. European Commission, A European Agenda on Migration (n 24) 12 (emphasis added). Case C-245/11 K [2012] ecli:eu:c:2012:685. As reported in the contribution by P. Van de Peer to this volume, ‘[t]he negotiations on the Reception conditions’ Directive and the Dublin Regulation were finalised in September 2012’. See European Commission, Proposal for a Regulation (n 16) Article 11. See also Council Document 14950/10, 15 October 2010; Council Document 16767/10, 26 November 2010, Article 11; Council Document 6919/12, 28 February 2012, Articles 2(g)(b) and 11; and

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Chapter iii of the Regulation, and being worded in the same qualified terms as Article 15(2) dr ii (‘shall normally’), it is undoubtedly a ‘binding responsibility criterion’ (see Recital 16), although one that is subject to a special regime.94 Despite having the goal of ensuring family unity in particularly difficult situations, its terms are so narrowly drafted as to defeat this very purpose. In fact, while old Article 15(2) covered the relations between the applicant and his or her ‘relatives’, new Article 16 is only applicable between the applicant and his or her ‘legally residing’ parents, siblings and children. Such terms may well be impermissibly restrictive: the exclusion of the spouse from the scope of Article 16 arguably constitutes an unjustified difference of treatment in the enjoyment of family life that must be corrected through an application by analogy.95 Be that as it may, Article 16 is much more restrictive than old Article 15(2), and the question is whether K is still good law in the situations of dependency that have been left out of the new criterion. The letter of the Regulation indicates that such situations are effectively excluded from the scope of Article 16 and must now be examined under the standpoint of Article 17, i.e. of the (usually optional) discretionary clauses.96 This does not mean, however, that the obligations affirmed by K have disappeared. To the contrary, since the overarching aim of the Regulation is to better protect family unity, and not to backtrack on the level of protection that was afforded by the old Regulation, Article 17 must arguably be read as still implying – above and beyond human rights obligations – the autonomous obligations flowing from K.97 Such an

94

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96 97

Council Document 7814/12, 19 March 2012, Articles 2(g)(b) and 11 (substantially the final version). The criterion is in fact subject neither to the hierarchical rule of Article 7(1) dr iii, nor to the ‘freezing rule’ of Article 7(2) dr iii: for an in-depth analysis, and for the argument that ‘shall normally’ means different things in the context of old Article 15(2) dr ii and of new Article 16 dr iii, see Hruschka and Maiani (n 89) comment to Article 16. Although restrictively admitted, analogical interpretation may be invoked by persons to whom an eu act or provision is not applicable under two conditions: (a) that the rules applicable to their case ‘are very similar to those which it is sought to have applied by analogy’; and, (b) that the rules applicable to their case ‘contain an omission which is incompatible with a general principle of [eu] law and which can be remedied by application by analogy of those other rules’ (see Case 165/84 Krohn [1985] ecr 1985-03997 para 13ff; Case F-81/09 Marcuccio v Commission [2011], eu:F:2011:13 para 55). For a fuller discussion, see Hruschka and Maiani (n 89) comment to Article 16. See e.g. Filzwieser and Sprung (n 63) 89, para K1. In this sense, see also the contribution by U. Brandl to this volume. For a fuller discussion of the argument presented in the text, see Hruschka and Maiani (n 89). It should be noted that the wording of Article 16 can hardly be considered as a rejection of the K case-law,

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i­nterpretation would be in line with the stated objectives of Article 17 (see recital 17), and would not be precluded by the fact that the discretionary clauses are usually optional, given that the ecj itself has identified cases of mandatory application (see below 3.4.2). 3.3 The Improvement of Dublin Procedures 3.3.1 New and Strengthened Procedural Guarantees The recast Regulation strengthens considerably the procedural rights of applicants in the Dublin procedure. Article 4 dr iii develops the indication that applicants should be informed in writing on ‘the application of this Regulation, its time limits and its effects’ (Article 3(4) dr ii) into a detailed right to be informed on the key aspects of the Dublin system including the guarantees it incorporates. Such information must be provided in writing through common leaflets drawn up by the Commission,98 as well as orally ‘[w]here necessary for the proper understanding of the applicant’. Better information is now complemented by the right to be heard in a personal interview (Article 5 dr iii), that may only be omitted in the cases exhaustively enumerated in paragraph 2, and that must take place ‘in a timely manner and, in any event, before any decision is taken to transfer the applicant’. This interview, which was not guaranteed by either the Dublin ii Regulation or national legislation in several Member States,99 is meant to serve both the public interest and the interests of the applicant: it should ‘facilitate’ responsibility-determination (see Article 5(1) dr iii), ‘allow the proper understanding of the information supplied […] in accordance with Article 4’ (ibidem) and let the applicant provide information on the presence of his family members or relatives (Recital 18). In line with general principles of eu Law, Article 5 dr iii must also be interpreted as allowing the applicant ‘to make known his views effectively’, including his or her objections to being transferred to a particular Member State, and as entailing the corresponding duty of the authorities ‘to pay due attention to the observations thus submitted […], examining carefully and impartially all since the text was politically agreed before the judgment was rendered (see n 91), and that the interpretation proposed in the text would not make Article 16 redundant since the obligations to ‘keep or bring together’ in Article 16 itself and in the K judgment are differently qualified (see, again, Hruschka and Maiani (n 89) comment to Article 16). 98 See Regulation 1560/2003, as amended by Regulation 118/2014 (n 40) Annexes x and xi. 99 See ecre, Dublin ii Regulation. Lives on Hold (n 32) 54ff.

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the relevant aspects of the individual case and giving a detailed statement of reasons for their decision’.100 Article 6 lays down special guarantees for children. Paragraph 1 recalls that the best interest of the child must be a primary consideration in ‘all procedures provided for’ in the Regulation. That is plainly implied by Article 3(1) of the un Convention on the rights of the child and of Article 24(2) crf,101 but nonetheless worth spelling out in the Regulation in light of past practice.102 Paragraph 3 helpfully lays down a non-exhaustive list of aspects that must be taken into account when assessing the best interest of the child. Unaccompanied minors benefit from further guarantees, namely the appointment of a qualified representative and the obligation, placed on the competent national authorities, to take appropriate action in order to trace family members and relatives (see above Section 3.2.1).103 The most important procedural innovation in the recast Regulation is ­however Article 27, which guarantees the right to an ‘effective remedy, in the form of an appeal or review, in fact and in law, against a transfer decision, before a court or tribunal’. As per Article 27 (6) dr iii, this right also includes a qualified entitlement to free legal assistance that is closely modelled on that foreseen by Articles 20 and 21 of the recast Asylum Procedures Directive.104 Reversing the approach followed in Articles 19(2) and 20(1)(e) dr ii, which ruled out automatic suspension on the flawed assumption that Dublin transfers could cause no irreparable damage to applicants,105 Article 27(3) requires automatic suspension in one of three possible forms. As a minimum, the applicant must have the opportunity to request suspension, and the filing of this request must automatically suspend the transfer until a judge decides. This 100 101 102 103 104

See Case C-166/13 Mukarubega [2014] ecli:eu:c:2014:2336 para 42ff. See Case C-648/11 ma (n 14) para 55ff. See e.g. ecre, Dublin ii Regulation. Lives on Hold (n 32) 28ff. See also Regulation No. 1560/2003, as amended by Regulation No. 118/2014 (n 40) Article 12. For analysis, see mutatis mutandis the contribution by C. Costello and E. Hancox to this volume, Section 4. It is worth noting that not all the restrictions and conditions allowed by the recast Asylum Procedures Directive are permitted under the Dublin iii Regulation. For example, the limitation of free legal assistance to appeals before a first instance court, or absolute monetary or time limits, are not contemplated by Article 27 dr iii. For a  ­horizontal analysis of ceas provisions on legal assistance, see the contribution by B. Mikolajczyk to this volume. 105 European Commission, Proposal for a Council Regulation 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, com (2001) 447, 26 July 2001, 7.

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closely follows the model of Article 13 echr as interpreted by the Strasbourg Court.106 There is however an important difference: while Article 13 echr is only applicable when there is an arguable claim that the contested measure would violate a Convention right, and only requires suspensive effect in certain situations,107 Article 27 dr iii guarantees an effective remedy against transfer decisions with suspensive effect whatever the grounds of appeal. Concerning the scope of application of the rights it enshrines, Article 27 is however defectively worded in that it only guarantees an effective remedy against ‘transfer decisions’. On a literal reading, this excludes other categories of decisions that may adversely affect the interests of the applicant, e.g. a decision to apply the sovereignty clause (Article 17(2) dr) precluding a transfer based on a family criterion. At the very least, such other decisions must be subject to an ‘effective remedy’ under Articles 13 echr and 47 cfr whenever they interfere with the rights of the applicant under the echr or under Union Law.108 Interpreting Article 27(1) extensively, as covering all decisions taken under the Regulation, would be preferable as it would seamlessly fill the gap by affording exactly the same ‘effective remedy’ across the board. A key issue, and one that is not conclusively settled, is the scope of review guaranteed by Article 27. In the Abdullahi case, the Court was asked whether, under Articles 19 and 20 dr ii, the applicant had the right ‘to request a review […] on the grounds that the criteria […] have been misapplied’.109 In answering the question, the ecj highlighted two elements: first, it downplayed the need for the applicant to have full review at its disposal while stressing that the Dublin Regulation aims at speeding up the handling of claims110; then, by highlighting the discretion enjoyed by Member State under the Regulation, it characterised the Dublin scheme as ‘organisational rules governing the relations between the Member States’ and stressed once more speed and effectiveness as foundational values thereof.111 The Court’s conclusion was that ‘in circumstances where a Member State has agreed to take charge of the applicant […] 106 Čonka v Belgium Appl no 51564/99 (ECtHR, 5 February 2002) paras 78ff; Gebremedhin [Geberamadhien] v France Appl no 25389/05 (ECtHR, 26 April 2007) para 66; ECtHR, mss v Belgium and Greece (n 51) para 293. 107 See De Souza Ribeiro v France Appl no 22689/07 (ECtHR, 18 December 2012) paras 82–83. 108 See Meijers Committee, Note on the proposal of the European Commission of 26 June 2014 to amend Regulation (eu) 604/2013 (the Dublin iii Regulation), 2 December 2014, 5. 109 C-394/12 Abdullahi (n 33) para 42. 110 Ibid paras 52 to 55, where the Court stresses particularly that Member States may trust each other to respect fundamental rights, and that the rules based on which they examine asylum applications are ‘broadly the same, irrespective of which Member State is responsible’. 111 Ibid paras 56 to 59.

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on the basis of [the irregular entry criterion] the only way in which the applicant for asylum can call into question the choice of that criterion is by pleading systemic deficiencies in the [asylum system of the responsible State]’.112 Leaving aside the concept of ‘systemic deficiencies’ for now,113 the conclusion of the Court on the scope of review is open to several readings. The literal one is that the existence of ‘systemic deficiencies’ in the responsible State is the only admissible ground of review for Dublin transfers. This would grossly violate Article 13 echr, which requires that an effective remedy be granted for the alleged violation of any right guaranteed by the echr, and by implication also eu primary law (see Article 52(3) cfr). Assuming that the Court did not intend to disregard key human rights guarantees, Abdullahi may be read as precluding appeals based on the misapplication of the criteria or, as suggested by the Advocate General, as precluding appeals based on the misapplication of those criteria and rules that are not meant to protect the interests of the applicants.114 The Abdullahi judgment is under any reading inimical to the concept that the Union is a polity governed by the rule of law,115 and the arguments on which it relies are less than convincing. The question, which has already been submitted to the Court,116 is whether Abdullahi is still good law under the recast Regulation. In answering it, the Court will hopefully take into account two new facts. First, under the new Regulation the applicant and his interests have a much more prominent place in the Dublin scheme (see above Section  3.1.2), the applicant himself being afforded explicitly a right to be heard. Under these conditions, it is difficult to sustain the idea that in the 112 Ibid para 60 and operational part. 113 See below Section 3.4.2. 114 See opinion of Advocate General Cruz Villalon delivered on 11 July 2013, C-394/12 Abdullahi (n 33) paras 44ff. 115 Even on its mildest reading, Abdullahi states in effect that applicants have no appeal against decisions applying arbitrarily some criteria, even though such decisions may have a profound impact on their lives. In this last regard, the argument that the rules based on which the applications will be examined are ‘broadly the same, irrespective of which Member State is responsible’, is (a) currently unsustainable (see above Section 2.3) and (b) in any case incapable of supporting the idea that a Dublin transfer does not per se impact the interests of the applicant in a manner requiring full judicial protection. Assuming a perfectly level playing field, and assuming that the person concerned has a valid claim for protection, in the absence of a fully-fledged free movement regime for beneficiaries of international protection, determining the Member State responsible amounts to deciding where the applicant is going to spend a substantial part of his or her life. 116 See Case C-155/15 Karim [2015] oj C 198/23.

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scheme of the Regulation, the applicant is the passive object of a game that plays out exclusively among the Member States.117 Secondly, and more specifically, Recital 19 dr iii states that the ‘effective remedy’ of Article 27 ‘should cover both the examination of the application of this Regulation and of the legal and factual situation in the Member State to which the applicant is transferred’ (emphasis added) – a wording suggesting that full review should be guaranteed on both aspects. 3.3.2 Guarantees against Detention The introduction of a set of rules limiting the use of detention in Dublin procedures is another noteworthy and practically important innovation – all the more so given the widespread use of detention documented in several Member States.118 Article 28 dr iii lays down, first, a number of general principles. Applicants may not be detained for the sole fact that they are subjected to a Dublin procedure (paragraph 1). Paragraph 2 adds that they may only detained if, based on an individualised assessment, it is found that there is a ‘significant risk of absconding’ as objectively defined in national law (Article 2(n) dr iii). Detention must furthermore be proportional, and it must be established that less coercive alternative measures cannot be applied effectively. Such general rules should at least outlaw the practice of automatically detaining ‘Dublin transferees’, and have already given rise to interesting developments at national level.119 It remains to be seen whether they will effectively reduce the use of detention, given that the applicants’ incentives to evade the system are unchanged and that there is no reason to assume that the inclination of national authorities to resort to coercion has abated. Perhaps of more immediate impact, Article 28(3) dr iii limits the duration of detention first by pointing out that such detention must be ‘for as short a period as possible’ and may continue only so far as the transfer is pursued with due diligence,120 and secondly by laying down strict time-limits. Where the applicant is detained, take charge or take back requests will have to be sent within one month,121 replies will have to be given within two weeks under

117 See also Peers (n 13) 353 f, 372 f and 378ff. 118 See ecre, Dublin ii Regulation. Lives on Hold, (n 32) 92ff; Fratzke (n 24) 19. 119 For analysis, see the contribution to this volume by L. Tsourdi, Section 3.2.2 in fine. 120 For parallel requirements of diligence under the Article 5(1)(f) echr, see A v United Kingdom Appl no 3455/05 (ECtHR, 19 February 2009) para 164. 121 Instead of three or, as the case may be, two months (see Articles 21(1), 23(2) and 24(2) dr iii).

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­ enalty of tacit acceptance,122 and transfer will have to follow within six weeks p of acceptance.123 Failure by the requesting/transferring Member State to observe the first and third deadlines will not have the effect of transferring responsibility to it, but it will entail the duty to immediately free the applicant. Based on experience with the time-limits laid down in the Return Directive, the ecj may be expected to impose a strict application of this rule.124 Concerning the conditions of detention, Article 28(4) provides that Articles 9 to 11 of the recast Reception Conditions Directive ‘shall apply’. The wording chosen suggests that the provisions referred to are technically speaking incorporated in the Regulation and are therefore binding on all Dublin States regardless of whether they are bound by the Directive itself,125 so far as detention in Dublin procedures is concerned.126 3.3.3 Further Procedural Amendments Apart from the aspects examined so far, the Regulation includes a number of more technical amendments, some of which are nonetheless worth mentioning since they may have a positive impact on the position of applicants. In the first place, deadlines have been introduced for submitting take back requests (see Articles 23(2) and 24(2) dr iii), as well as for replies under the humanitarian clause of Article 17(2) dr iii. In the latter case, however, noncompliance with the deadline has no effect on responsibility.127 Furthermore, the exchange of personal data in preparation of the transfer is now regulated in Articles 31 and 32, with the overarching aim of ‘ensuring that the competent authorities […] are in a position to provide [the transferee] with adequate assistance, including the provision of immediate health care […], and to ensure continuity in the protection and rights afforded by this Regulation and by other relevant asylum legal instruments’. This should

122 Instead of two months or, as the case may be, one month (see Articles 22(7) and 25(1) dr iii). 123 Instead of six months (see Article 29(1) dr iii). 124 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, oj L 348, 24 December 2008, Article 15. See Case C-357/09 Kadzoev [2009] ecr I-11189 para 60. 125 See above n 34. 126 In the same sense, see Peers (n 13) 374 as well as the contribution by L. Tsourdi to the present volume, Section 3.1.1 in fine. For an analysis of Articles 9–11 of the Recast Directive see ibid, Sections 3.2.3ff. 127 Filzwieser and Sprung (n 63) 163, para K18.

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inter alia prevent fatal accidents that occurred in the past from happening again.128 3.4 Access to Status Determination and Protections against Refoulement 3.4.1 New Safeguards Concerning Access to Status Determination The ‘main objective’ of the Dublin Regulation is, as noted, to ensure that every third country national applying for protection in one of the Member States has access to a status determination procedure (see above Section 2.2). Under the Dublin ii Regulation, national rules on the ‘interruption’ or ‘discontinuation’ of claims could defeat this purpose entirely. In several Member States, the absence of the applicant for a given period of time (e.g. three months) would entail either the discontinuation or the rejection of the claim, with no or limited possibilities to reopen the case. Combined with the secondary movements prevalent in the ceas, such rules could effectively shut the applicant out of status determination procedures in the entire Dublin area: the first Member State would have closed the case and the other Member States, relying on the responsibility of the first State, would also decline to examine the claim.129 In at least one documented case, this resulted in the refoulement and subsequent death of the applicant.130 Secondary movements, combined with procedural rules imposing time-limits on appeals, might also have the serious consequence of depriving the applicant of a second-instance procedure upon ‘take back’.131 ‘Interruption’ practices of varying severity have kept re-emerging in several Member States until very recently,132 and it is therefore an important progress for the integrity of the Dublin system that the recast Regulation now closes this dangerous gap. Under Article 18(2) dr iii, the responsible State has the unconditional obligation, upon request, to resume and complete the examination of claims that have been explicitly or implicitly withdrawn, and to give the applicant the opportunity to challenge any first-instance rejection of his claim that may have intervened in his absence.

128 See e.g. the case reported in unhcr, Dublin ii – A unhcr Discussion Paper, 2006, 44, also described in ecre, Twenty Voices, 30 March 2007 (case of Maia). 129 See the contribution by M. Garlick to this volume, Section 5.1. See also European Commis­ sion, Commission Staff working document – Dublin iii Impact Assessment (n 29) 19ff. 130 ecre, Twenty Voices (n 128) 2 (case of Ali). 131 European Commission, Commission Staff Working Document – Dublin iii Impact Assess­ ment (n 29) 20. 132 See again the contribution by M. Garlick, Section 5.1.

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Having said this, it is perhaps worth pointing out that the legislator has not gone so far as to guarantee to every applicant a substantive examination of his claim: like its predecessor provision, Article 3(3) dr iii still authorises every Member State133 to send the applicant to a safe third country, albeit ‘subject to  the rules and safeguards laid down in [the recast Asylum Procedures Directive]’.134 A more intriguing question is whether the recast Regulation guarantees every applicant access to a status determination procedure that complies with the applicable eu standards.135 The combination of Articles 18(2) and 2(d) dr iii would appear to suggest just that. Article 18(2) requires the responsible State to ‘examine or complete the examination of the application’, and Article 2(d) defines such ‘examination’ as ‘any examination of, or decision or ruling concerning, an application […] in accordance with [the recast Qualification Directive] and [the recast Asylum Procedures Directive]’ (emphasis added). The immediate implication of a strong, literal reading would be that the seven Dublin States136 that are not bound by these Directives should none­ theless act ‘in accordance’ with them, by virtue of the Dublin iii Regulation, whenever are responsible for the examination of an application – i.e. in fact every time that they examine an application.137 Quite independently from any objection that might potentially be raised on the basis of the Protocols and Agreements regulating the position of these States, such a conclusion is unconvincing as a matter of statutory interpretation of the Regulation. Leaving aside the position of the four efta States, reading Article 2(d) as entirely nullifying

133 Be it the ‘determining’ State or the ‘responsible’ State: see Filzwieser and Sprung (n 63) 102, para K21. 134 On the safe country arrangements of the recast Asylum Procedures Directive, see the contribution by C. Costello and E. Hancox to this volume. The reference to ‘rules and safeguards’ in Article 3(3) dr iii is considerably less precise, and expressed in considerably less imperative terms than the reference to the recast Reception Conditions Directive in Article 28(4) dr iii (‘Articles 9, 10 and 11 […] shall apply’; see above Section  3.2.3). Accordingly, one cannot as readily conclude that Article 3(3) dr iii ‘incorporates’ the relevant rules of the recast Asylum Procedures Directive in such a way that they should also be observed by the uk, Ireland, Denmark and the four efta associate States (see above note n 18 and 34). 135 For an interesting argument in this sense, see Verwaltungsgericht Frankfurt am Main, Case 7 K 4376/06.F.A (3), 8 July 2009, 13ff. 136 See above n 18 and 34. 137 In the scheme of the Dublin system, any State examining an application becomes ipso jure the ‘responsible’ State (see Article 17(1) dr iii).

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the opt-out of the three eu Member States138 would seem to require, in general, a clearer expression of intent. But in our case such intent can safely be excluded. Indeed, the opt-out of the uk and Ireland from the recast Asylum Procedures Directive has formally the same date as Article 2(d) dr iii: it is acknowledged in Recital 58 of the recast Directive, and both the Directive and the Regulation have been adopted on 26 June 2013. An interpretation accepting that two eu legislative acts adopted on the same day contradict each other on exactly the same point cannot be sustained. The conclusion that the recast Regulation does not in itself impose or require respect for eu standards in all the Dublin States has, in turn, a number of implications. From a conceptual standpoint, and borrowing from Vincent Chetail, it implies that the ceas still is to a large extent a bric-à-brac rather than a true system in the sense of ‘a cogent and comprehensive frame in which each instrument is articulated with the others’.139 From a more operational standpoint, it tends to exclude that full respect for eu standards can be a precondition for effecting transfers.140 This, of course, does not exclude that serious and sustained breaches of eu standards – or, if ‘opt-out’ and associated States are considered, practices clearly deviating from such standards – may indirectly become relevant in that context.141 3.4.2 Breaking the Taboo: The New Article 3(2) dr The Dublin system rests on the presumption ‘that all the participating States, whether Member States or third States, observe fundamental rights, including the rights based on the Geneva Convention and the 1967 Protocol, and on the echr, and that the Member States can have confidence in each other in that regard’.142 This is also recalled – in elliptic form – by Recital 2 of the Regulation. Practical experience has however abundantly shown that the relevant international standards are not adequately (let alone homogeneously) implemented across the Dublin area.143 In this regard, the ECtHR and the ecj have established that the Mem­ ber  States and the eu legislator may not treat the safety presumption as 138 The more limited references made by Articles 3(3) and 28 dr iii to harmonised standards (see above Section 3.2.3 and n 133) differ from Article 2(d) precisely in this respect. 139 See the contribution of V. Chetail to this volume, conclusion. 140 C-411/10 and C-492/10 ns and others (n 17) paras 84ff. 141 For a more in-depth discussion, see F. Maiani, ‘Fitting eu Asylum Standards in the Dublin Equation: Recent Case Law, Legislative Reforms, and the Position of Dublin “Associates”’ (2010) 25(2) Asyl, 9. 142 C-411/10 and C-492/10 ns and others (n 17) para 78. 143 See the contribution of M. Garlick to this volume, Section 4.

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conclusive,144 and have thereafter engaged in an intricate game of judicial fencing centred on the conditions that must be fulfilled for a Dublin transfer to be impermissible and, in subtext, on who gets the last word in defining said conditions.145 Article 3(2) and Recital 21 of the recast Regulation acknowledge for the first time in black letter law that in certain circumstances, it is ‘impossible’ (read: impermissible) to transfer the applicant to the responsible State on account of risks that would be incurred there. In drafting Article 3, the legislator has decided to draw inspiration from the ns judgment of the ecj, whose operative part reads: Member States […] may not transfer an asylum seeker to the ‘Member State responsible’ […] where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment […].146 In such cases, so the Court, the ‘determining’ Member State must ‘continue to examine the criteria’ in order to establish whether one of the ‘following criteria’ designates another Member State as responsible. Alternatively, the Member State has the option of assuming responsibility under the sovereignty clause. This option becomes a duty whenever following the normal course would ‘worsen a situation where the fundamental rights of [the] applicant have been infringed by using a [Dublin procedure] which takes an unreasonable length of time’.147

144 ti v United Kingdom Appl no 43844/98 (ECtHR, 7 March 2000): ‘The Court finds that the indirect removal in this case to an intermediary country, which is also a Contracting State, does not affect the responsibility of the United Kingdom to ensure that the applicant is not, as a result of its decision to expel, exposed to treatment contrary to Article 3 of the Convention. Nor can the United Kingdom rely automatically in that context on the arrangements made in the Dublin Convention […]’ (emphasis added); C-411/10 and C-492/10 ns and others (n 17) paras 99ff. 145 For an in-depth analysis of the case-law of both Courts on the issue, see the contribution by J. Vedsted-Hansen to this volume. See also F. Maiani, ‘Establishing a Common European Asylum System by Leaving European Human Rights Standards Behind: Is this the Way Forward?’ accessed 23 July 2015. 146 C-411/10 and C-492/10 ns and others (n 17) operative part. 147 Ibid.

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It is hard to fathom why the Court should construct such an extravagantly convoluted architecture when, at the time when it decided, there was widespread agreement among judges and scholars that a legal obstacle to transfer directly entailed the duty of the determining State to apply the sovereignty clause.148 The solution chosen by the Court appears inferior in practically every respect: it does not rest on solid textual foundations,149 it delays access to status determination, contradicting what the ecj itself has rightly indicated to be the ‘main objective’ of the Dublin system (see above Section  1.2), and it lends itself to widely divergent interpretations – e.g. on what an ‘unreasonable length of time’ is – not to mention to manipulation.150 Unfortunately, the legislator has decided to adopt ns ‘en bloc’, including its baroque solution to situations of ‘systemic deficiency’. Despite potentially significant textual discrepancies,151 Article 3(2) dr iii appears to reflect just that intention and ought to be interpreted accordingly.152 Ever since ns was published, there has been considerable debate as to what ‘systemic deficiencies’ (or ‘flaws’ as the Regulation has it) may be. Opinions have ranged from holding that the expression is synonymous with a complete failure of the asylum system in all of its component, such as the one observed 148 See in particular G. Noll, ‘Formalism v Empiricism: Some Reflections on the Dublin, Convention on the Occasion of Recent European Case Law’, (2001) 70 Nordic Journal of International Law, 161–162. See also the 3rd edition of the commentary by Filzwieser and Sprung: C. Filzwieser and A. Sprung, Dublin ii-Verordnung: Das europäische Asylzustän­ digkeitssystem (3rd edn Neuer Wissenschaftlicher Verlag 2010) 74, para K8; ECtHR, mss v Belgium and Greece (n 51) paras 339ff; unhcr, Updated unhcr Information Note on National Practice in the Application of Article 3(2) of the Dublin ii Regulation in Particular in the Context of Intended Transfers to Greece, 31 January 2011, 2. See also the opinion of Advocate General Trstenjak delivered on 22 September 2011 C-411/10 and C-492/10 ns and others (n 17) para 122. 149 To the contrary, there was nothing in the Dublin ii Regulation to suggest that two or more States could be successively designated as responsible on the basis of the criteria. 150 Keen to transfer asylum applicants elsewhere, but unable to find another responsible State on the basis of criteria ‘following’ the one that had been originally applied, some Member State reapplied the same criterion in a move that is contrary to both the ns judgment and to the system of the Regulation: see opinion of Advocate General Cruz Villalon delivered on 11 July 2013, C-394/12 Abdullahi (n 33) paras 68–74. 151 Article 3(2) refers to ‘substantial grounds for believing that there are systemic flaws […] resulting in a risk of inhuman or degrading treatment’, whereas in ns the systemic deficiencies, of which Member States ‘cannot be unaware’, amount to ‘substantial grounds for believing’ that the applicant incurs a relevant risk. As it will become apparent in a moment, the two formulas do not have the same literal meaning. 152 See also Peers (n 13) 352; Mouzourakis (n 14) 16.

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in Greece at the time when the mss and ns cases were decided, to holding that a ‘systemic deficiency’ is a failure or lacuna making a risk of ill-treatment merely ‘predictable’.153 Like Jens Vedsted-Hansen, who provides a full argument in his contribution to this volume,154 I tend to consider that what defines systemic deficiency is that Member States ‘cannot be unaware’ of them. The concept – which is simultaneously linked to human rights protection and to efficiency considerations, in their turn derived from the principle of mutual trust underpinning the Dublin system155 – is in my view meant to include all risks that derive from readily ascertainable factors, and conversely to exclude risks that can only be established on the basis of a case-by-case assessment. This interpretation of the Court’s position is borne out by the aforementioned evidentiary requirement, laid down in the ns judgment and not explicitly replicated in Article 3(2) dr ii, that transfers are precluded when Member States ‘cannot be unaware’ of the deficiency, based on dependable field reports enabling them to ‘assess the functioning of the asylum system’.156 As Advocate General Jääskinen has later summarised – though in my view adopting an overly restrictive view of what systemic deficiencies: ‘the evidential standard is set out to the point where it has become notorious that asylum seekers cannot be transferred to the Member State concerned’.157 To put it differently still, the dictum of the ecj in ns refers to situations where the transfer of the applicant to a certain State is precluded regardless of his or her individual circumstances, on account of manifest dysfunctions of the asylum system exposing him or her to a real risk of ill-treatment. In and of itself, on such a reading, the principle laid down in ns and Article 3(2) dr iii is unproblematic. According to the well-established case-law of the ECtHR, all removals (including Dublin transfers) are prohibited ‘where substantial grounds have been shown for believing that the person concerned faces a real risk of being subjected to [treatment contrary to Article 3 echr]’ in the destination State.158 It is a useful addition indeed to state that ‘systemic deficiencies’ of which Member States cannot be ‘unaware’ may amount to such ‘substantial grounds’ without any need to consider the individual position of the applicant. 153 See A. Lübbe, ‘Systemische Mängel in Dublin-Verfahren’ (2014) 3/2014 Zeitschrift für Ausländerrecht, 105 (abridged version in English: A. Lübbe, ‘“Systemic Flaws” and Dublin Transfers: Incompatible Tests before the cjeu and the ECtHR?’ (2015) 27 ijrl 135). 154 See Section 3.2. 155 C-411/10 and C-492/10 ns and others (n 17) paras 75–86. 156 Ibid paras 90–92 (emphasis added). 157 Conclusions of Advocate General Jääskinen delivered 18 April 2013, Case C-4/11, Puid [2013] ecli:eu:c:2013:740, para 61. 158 See among many others ECtHR, mss v Belgium and Greece (n 51) para 365.

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It would be very problematic, by contrast, to state that only risks of treatment contrary to Article 3 echr stemming from a ‘systemic deficiency’ may preclude a Dublin transfer, as the ecj appears to have done in Abdullahi.159 This would be contrary to well-established human rights standards on two counts. First, any real risk of ill-treatment precludes a transfer regardless of how it has been established. This means that, even in the absence of ‘systemic deficiencies’, Member States are duty-bound to examine any arguable claim based on individual circumstances. As the ECtHR explicitly stated in Tarakhel, The source of the risk does nothing to alter the level of protection guaranteed by the Convention or the Convention obligations of the State ordering the person’s removal. It does not exempt that State from carrying out a thorough and individualised examination of the situation of the person concerned and from suspending enforcement of the removal order should the risk of inhuman or degrading treatment be established.160 Second, international law prohibits expulsion also on account of risks other than the risk of torture and inhuman or degrading treatment. On the one hand, while Article 3 may well be the dominant focus of the non-refoulement jurisprudence developed under the echr, the prospective violation of other Convention rights may also preclude removals.161 On the other hand, further prohibitions may flow from other treaties, most notably from the 1951 Refugee Convention: a risk of indirect refoulement under Article 33 of the Convention needs not involve a risk of torture, and it has also been persuasively argued that the Convention would be breached by removal to a State which, while ‘safe’ from the standpoint of Article 33, is unable or unwilling to extend rights secured by the Convention itself to refugees.162 In summary, international law prohibits the transfer of applicants, on account of risks incurred in the responsible State, in a range of situations that exceed the scope of Article 3(2) dr iii. There can be no doubt that Member 159 C-394/12 Abdullahi (n 33) para 60. In the same sense, see Peers (n 13) 353. 160 Tarakhel v Switzerland Appl no 29217/12 (ECtHR, 4 November 2014) para 104 (emphasis added). 161 Othman v United Kingdom Appl no 8139/09 (ECtHR, 17 January 2012) paras 231ff and 258ff. 162 C. Hathaway and M. Foster, The Law of Refugee Status (2d edn, Cambridge University Press 2014) para 1.2 and especially 1.2.3. On the risk that the Geneva Convention becomes marginalised in the Dublin debate, see also the contribution by J. Vedsted-Hansen to this volume, Section 4.2.

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States must abide by their international obligations, as explicitly recalled in the preamble of the Dublin iii Regulation itself (see Recital 32, including its explicit reference to the case-law of the ECtHR). Transfers that would be contrary to international standards may therefore not be carried out. In addition, the applicant must according to Article 3(1) dr iii be granted access to a status determination procedure. If one discards the possibility of an analogical application of Article 3(2) dr iii in such cases, only one option remains: the mandatory application of the sovereignty clause by the determining Member State.163 It is of course deeply unsatisfactory that applicants should be subjected to different rules – in one case an ‘extended’ Dublin procedure, in the other case immediate access to status determination – depending on whether the risk they incur in the responsible State derives from ‘systemic flaws’ or not, and it would be far preferable for the Member States to systematically apply the sovereignty clause also in the cases currently covered by Article 3(2) dr iii. The Mechanism for Early Warning, Preparedness and Crisis Management: Valuable Tool or Window-Dressing? The original recast proposal, submitted by the Commission while the Greek crisis was in full swing,164 included a temporary suspension mechanism to be activated on the basis of particular pressures or protection concerns in a Member State.165 Firm resistance by Council led to this ‘emergency brake’ concept to be abandoned, and to the introduction in the Regulation of a new ‘mechanism for early warning, preparedness and crisis management’ (Article 33 dr iii).166 The mechanism purportedly aims to prevent ‘the smooth functioning’ of the Dublin system from being ‘jeopardised as a result of particular pressure on, and/or deficiencies in, the asylum systems in one or more Member States’ (Recital 22). Preventing fundamental rights from being jeopardised in such situations is regrettably presented ad an indirect consideration (see Recital 21).167 The mechanism is meant to identify problems before they develop into a  fully-fledged crisis and to provide the Member State concerned with the

3.5

163 See also the contribution by J. Vedsted-Hansen to this volume, Section 3.3. 164 See in particular unhcr, unhcr Position on the Return of Asylum-Seekers to Greece under the ‘Dublin Regulation’, 15 April 2008. 165 European Commission, Proposal for a Regulation (n 16) Article 31. 166 See the contributions by P. Van de Peer and M. Garlick to this volume. 167 Or an ‘afterthought’: V. Mitsilegas, ‘Solidarity and Trust in the Common European Asylum System’ (2014) 2 Comparative Migration Studies, 198.

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i­ncentives, guidance and assistance it may need to address them.168 Its ‘early warning’ component rests on continuous data collection and analysis, particularly by easo,169 which should provide the Commission with a ‘permanent and reliable flow’ of information.170 If it appears that ‘the application of the Dublin Regulation may be jeopardised’ due to a ‘substantiated risk of pressure’ on a Member State or to ‘problems’ in the functioning of its asylum system, the Commission addresses recommendations to the concerned State and invites it to draw up a ‘preventive action plan’ (Article 33(1) dr iii). The Member State is free to accept the invitation, or even to draw a preventive plan at its own initiative. If it decides to draw up a plan, it must submit it to Council and Commission, regularly report on its implementation, and ‘take all appropriate measures’ to solve the problems that have been identified (Article 33(2) dr iii). As the next step – if the preventive action plan fails or if ‘there is a serious risk that the asylum situation in the Member State concerned develops into a crisis’ – the Commission requests the Member State concerned to draw up a ‘crisis management action plan’ ensuring ‘throughout the process, compliance with the asylum acquis […], in particular with […] fundamental rights’ (Article 33(3) dr iii). In this case, the Member State has the obligation to draw up a plan within three months and to report to the Commission ‘and other relevant stakeholders’ periodically. The Council provides political guidance throughout the process, while Council and Parliament are to ‘discuss and provide guidance on any solidarity measures’ (Article 33(4) dr iii). It has been contended that Article 33 is one of the ‘most significant innovations’ of the recast Regulation.171 That remains to be seen. Article 33 merely sketches out a procedure whose key drivers and components are still to be defined. On the one hand, the open-ended wording of the provision allows the Commission wide discretion in triggering the various phases – commendably, the Commission has started elaborating ‘suitability’ criteria.172 On the other hand, the ‘sticks and carrots’ that should drive the process by bringing and keeping the concerned State on course are implicit or merely hinted at in Article 33. The ‘stick’, it would seem, will be the general infringement ­procedure 168 Commission Services’ Non-Paper, A Mechanism for Early Warning, Preparedness and Crisis Management in the Dublin Area, 15 March 2013, 1. 169 easo is progressively developing its ‘Early Warning and Preparedness System’ (eps): easo, ‘Annual Report 2013’ (n 26) 50; easo, ‘Annual Report 2014’ (n 26) 63. See also ecre, ‘Enhancing Intra-eu Solidarity Tools’ (n 37) 24ff. 170 Commission Services’ Non-Paper, A Mechanism for Early Warning (n 168) 2. 171 Fratzke (n 24) 21. 172 Commission Services’ Non-Paper, A Mechanism for Early Warning (n 168) 5.

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of Article 258ff tfeu, which Article 33 dr iii does not exclude. The carrot would seem to be, as Recital 22 and Article 33(4) dr iii suggest, the possible deployment of the meagre ‘solidarity toolbox’ of the Union to assist the overburdened or defaulting Member State.173 The wording chosen for Recital 22 (‘solidarity […] goes hand in hand with mutual trust’) raises the concern that the effective use of this (rather unappetizing) carrot might be further impeded by the Union’s ‘responsibility-solidarity’ conundrum, whereby help is to be handed out only to the deserving, i.e. to States that comply with eu legislation and devote sufficient means thereto, i.e. to States that in principle need no assistance.174 Apart from the vagueness of its foundational text, the new mechanism also suffers from a potentially important lacuna: it does not make provision for the case that a fully-fledged crisis should erupt again. In this sense, the political choice of introducing an ‘early warning’ procedure in lieu of an ‘emergency brake’ – rather than in addition to an ‘emergency brake’ – appears very questionable. The legislator’s conviction that a full-scale crisis will never occur by virtue of Article 33 itself175 borders on the visionary. The idea that judicial remedies render a politico-administrative mechanism redundant, on the other hand, does not take into account the time it may take for ‘European’ case-law to emerge and the irreparable damage that could be done in the meantime.176 In short, although certainly not a panacea, the ‘emergency brake’ proposed by the Commission might be sorely missed on future occasions. 173 See n 54. See also Regulation (eu) No. 516/2014 establishing the Asylum, Migration and Integration Fund, amending Decision 2008/381/EC and repealing Decisions 573/2007/EC, 575/2007/EC and 2007/435/EC, oj L 150/168, 20 May 2014, Articles 6 and 19. 174 See the contribution by M. Garlick to this volume, Section  6; see also R. Bieber and F.  Maiani, ‘Enhancing Centralized Enforcement of eu Law: Pandora’s Toolbox?’ (2014) 51 Common Market Law Review 1089ff. 175 See the contribution by P. Van de Peer to this volume. 176 Between 2008 and 2010, the Member States transferred around 2’200 asylum seekers Greece, and sought unsuccessfully to remove about 14’000 more (see fra (n 46) 36). In doing this, Member States had full knowledge that they were exposing hundreds of persons to degrading treatment (ECtHR, mss v Belgium and Greece (n 51)). The Court later declared it established that ‘in autumn 2008 the Austrian authorities would have been aware of serious deficiencies in the Greek asylum procedure’ but not that ‘the Austrian authorities ought to have known that those deficiencies reached the Article 3 threshold’ (Sharifi v Austria Appl no 60104/08 (ECtHR, 5 December 2013) para 38). This bizarre conclusion is based on a questionable premise – i.e. that the reports profusely quoted by the Court in the judgment described a significantly better situation in 2008 than in 2009 – and appears to be, with due respect, little more than ex post justification for the unfortunate krs decision taken by the Court itself in December 2008: krs v United Kingdom Appl no 32733/08 (ECtHR, 2 December 2008).

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Beyond these general observations, and given the number and importance of the variables in the equation, it is impossible to tell whether the new mechanism will in the future prove useful or turn out to be mere window-dressing. One legal point must however be made: whatever its merits and usefulness, the existence of this new procedure must not be allowed to distort administrative and judicial decision-making on the permissibility of individual transfers. Some national administrations have already argued in the past that transfers to a given Member State were permissible since the Commission had not instituted infringement proceedings under Articles 258 tfeu.177 This line of argument is deeply flawed and must be rejected firmly. First, the Commission enjoys full discretion in instituting infringement proceedings, and in deciding its enforcement policy it may take into account political or managerial considerations that have no bearing at all on the issue of whether a particular Member State would be ‘safe’ for a particular applicant.178 Secondly, and relatedly, the Commission is notoriously under-resourced for the mammoth task of overseeing the application of (all) eu Law in (all) the Member States, and it is certainly not in a position to pursue all major instances of infringement, let alone investigate circumstances pertaining to individual cases.179 In short, arguing that eu law is being respected in a given Member State because the Commission has not instituted infringement proceedings against it is either naïve or disingenuous. The same considerations apply mutatis mutandis to the early warning mechanisms with the additional argument that, as far as the criteria for ‘safety’ are concerned, the Commission has already announced that it will essentially focus on systemic deficiencies capable of giving rise to a risk of ill-treatment for a ‘large number of applicants’.180 Such a criterion may be entirely adequate for this kind of procedure, but it is not coextensive with the criteria that must be applied when assessing the permissibility of a transfer in an individual case (see above 3.4.2).

177 See e.g. Fratzke (n 24) 18: ‘In Austria asylum authorities have declined to [apply the sovereignty clause] on the grounds that, since the Commission has not instituted infringement procedures, Italy is still fulfilling its obligations under eu law’. 178 See e.g. L. Prete and B. Smulders, ‘The Coming of Age of Infringement Proceedings’ (2010) 47 Common Market Law Review 13ff. On the enforcement policy followed by the Com­ mission in asylum matters until 2012, see Y. Pascouaou, ‘Human Rights Violations in the Field of Migration: A Collective Responsibility’ (2012) epc Policy Brief. 179 M. Smith, Centralised Enforcement, Legitimacy and Good Governance in the eu (Routledge 2010) 97ff; P. Wennerås, ‘Sanctions against Member States under Article 260 tfeu: Alive But Not Kicking?’ (2012) 49 Common Market Law Review 145. 180 Commission Services’ Non-Paper, A Mechanism for Early Warning (n 168) 5.

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4 Conclusion The experiences accumulated in over twenty years suggests that, by confirming the Dublin system as the responsibility-allocation mechanism of the ceas, the eu institutions have foreclosed progress towards substantially more efficiency and fairness. The fact that such a decision has been taken without a real debate, despite the evident inefficiency, inefficacy and negative side-effects of the system, is a textbook example of path-dependency and shows just how little political and intellectual room is left to imagine and discuss new avenues for the ceas.181 And yet such discussions are indispensable to overcome the structural problems of the ceas in its current form, and the comprehensive ‘fitness check’ of the Dublin system scheduled for 2016 might provide a welcome opportunity to at least reassess what we know about Dublin and to launch a more evidence-based discussion on this key element of the ceas. As policy debates on possible post-Dublin scenario will (hopefully) unfold in coming years, legal practice – and the life of thousands of applicants – will remain firmly rooted in the Dublin context. While there is no reason to believe that the recast Regulation will fundamentally alter the dynamics that have established themselves under the Dublin ii Regulation, it does provide an occasion to substantially improve the legal protection of applicants and other persons directly or indirectly affected by the system. Stronger procedural guarantees, a new emphasis on fundamental rights, enlarged possibilities for family reunification for the duration of asylum procedures, and improved access to such procedures are the basic tools that the Regulation places at the disposal of administrations and legal practitioners to promote a practice better corresponding to the purported objectives and principles of the system. In the best of cases, such tools will be constructively used to overcome the many gaps and inconsistencies of the recast Regulation itself. Progress will however not automatically materialize. Much will depend on the evolving case-law of the two European Courts – thus far, not an unmitigated good in Dublin matters –, on the readiness of administrative authorities and national judges to embrace the new spirit of the recast Regulation, and on the vigour and professionalism of civil society and legal practice as promoters of change.

181 Steve Peers has also observed that it is ‘striking that the Dublin iii Regulation makes no significant attempt to rethink the fundamentals of the Dublin system, even though it has led to significant human rights abuses’ (Peers (n 13) 382).

chapter 6

Family Unity and Family Reunification in the Dublin System: Still Utopia or Already Reality? Ulrike Brandl* 1 Introduction From the beginning of the establishment of the Dublin system the question of uniting families was seen as the criterion which should precede the appli­ cation of the other allocation criteria. The Dublin Convention from 19901 how­ ever only contained one single provision on family unity, whereas already the Dublin ii-Regulation2 provided several norms obliging States to unite families or to keep families united during the procedure determining the responsible State. Evaluations of both legal instruments clearly illustrated that the guaran­ tees for family unity were not sufficient.3 The Dublin iii-Regulation4 further extended the obligations for States to unite families. The aim of this contribution is to analyse the improvements and still exist­ ing gaps of the recast Dublin Regulation in this respect.5 This analysis also takes into account that family unity is not only based on the application of the Dublin iii-Regulation but also depends on the provisions transposing and * Department of International Law and International Organisations, Faculty of Law, University of Salzburg. 1 Convention Determining the State Responsible for Examining Applications for Asylum Lodged in One of the Member States of the European Communities, oj C 254, 19 August 1997 (entry into force 1 September 1997). 2 Council Regulation No. 343/2003 of 18 February 2003 establishing the criteria and mecha­ nisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, oj L 50/1, 25 February 2003 (Dublin Regulation). 3 For various evaluations see below n 10, n 12 and n 14. 4 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), oj L 180/31, 29 June 2013, 31. C. Filzwieser and A. Sprung, Dublin iii-Verordnung: Das Europäische Asylzuständigkeitssystem (nwv 2014). 5 Cf. also F. Maiani and C. Hruschka, ‘Der Schutz der Familieneinheit in Dublin-Verfahren’ (2014) 34 Zeitschrift für Ausländerrecht und Ausländerpolitik 69.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004308664_007

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implementing the Reception Conditions Directive6 and to a certain extent also on the Procedures Directive.7 Adjusted procedural rules and provisions on the tracing of family members in the other legal acts establishing the Common European Asylum System (ceas) should guarantee that families are united. Thus also horizontal issues play a central role. The question whether or not families remain or are united has strong human rights implications as the right to family life established for example by Article 8(2) European Convention for the Protection of Human Rights and Fundamental Freedoms (echr) could be violated when families are separated without justifications. It is not surprising that the question is a pressing issue for practitioners as they are confronted with a variety of scenarios where families are separated during their flight, where family members decide or are forced to seek refuge at different times, where they end up in different States or where even minor children seek for protection without being accompanied by an adult family member or another adult person taking care of them. 2

Family Unity and Reunification in the Dublin Convention and the Dublin ii-Regulation

Since the beginning of the negotiations for introducing an allocation system for asylum applications the main intention has been the allocation of respon­ sibility for examining applications to States allowing the entry and presence of applicants by issuing residence permits or visa or – this is the most frequently used criterion in practice – leaving space for illegal entry into their territory through insufficient border control.8 Only the allocation of responsibility for 6 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), oj L 1980/96, 29 June 2013. The provisions had to be transposed by 20 July 2015. 7 Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on com­ mon procedures for granting and withdrawing international protection (recast), oj L 180/160, 29 June 2013. The provisions had to be transposed by 20 July 2015. 8 According to the Eurodac-Regulation, persons who are apprehended in connection with an irregular crossing of an external border have to be finger-printed. If no higher ranked criteria apply the responsibility is allocated to the State, where the illegal border crossing took place. Regulation No. 603/2013 of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an applica­ tion for international protection lodged in one of the Member States by a third-country

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unaccompanied minors and scenarios where family unity and family reunifi­ cation cases are concerned have always been preceding the application of the other criteria. In the Dublin Convention only Article 4 took the unification of families into account. This article provided that the State should be responsible where a fam­ ily member of the applicant had been recognized as a refugee and was legally resident. The Convention contained a narrow definition of family members.9 The rather limited possibility to allocate the responsibility for members of the same family to one State was the main but not the only reason why this article has been used very little in practice. It might be assumed that many families were separated and these cases were not made public as the claimants did not bring their cases before the national administrative authorities or courts. Already at that time the Commission stated that the fact that only few claims were based on the family unity criterion seemed to indicate that family mem­ bers of refugees residing in the Member States used other possibilities, such as regular immigration channels to be united with their family members.10 The Dublin ii-Regulation extended the scope of the provisions regarding family unity. The Preamble of the Dublin ii-Regulation in its Recitals 6 and 7 referred to the fact that family unity should be preserved as far as this is compat­ ible with the other objectives pursued by establishing responsibility criteria.11 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 1077/2011 establishing a European Agency for the operational management of large-scale it systems in the area of freedom, security and justice, oj L180, 29 June 2013. 9 Article 4 (2) Dublin Convention (n 1) enumerated family members, who fall under the scope of this provision. Article 4 (2) covered the spouse of the applicant, his or her unmar­ ried child who is a minor of under eighteen years, or his or her father or mother where the applicant is an unmarried child who is a minor of under eighteen years. Art. 9 Dublin Convention already contained a humanitarian clause, which also referred to family unity. 10 Commission staff working paper, Evaluation of the Dublin Convention, sec (2001) 756 final, 13 June 2001, 5. See also Commission staff working paper, Revisiting the Dublin Convention: developing Community legislation for determining which Member State is responsible for considering an application for asylum submitted in one of the Member States, sec (2000) 522, 21 March 2000. 11 Dublin ii-Regulation, Preamble Recital 7: ‘The processing together of the asylum applica­ tions of the members of one family by a single Member State makes it possible to ensure that the applications are examined thoroughly and the decisions taken in respect of them are consistent. Member States should be able to derogate from the responsibility criteria, so as to make it possible to bring family members together where this is necessary on humanitarian grounds’. Also Article 4 of the Regulation refers to families. The provision

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The criteria for family unity and reunification were contained in Articles 6–8 Dublin ii-Regulation. Though the definition of family members was widened and the scope of the provisions was extended in the Dublin ii-Regulation com­ pared to the Convention the most recent evaluation12 of the application of the Dublin ii-Regulation still revealed that the percentage of transfers, which took place based on the family unity criteria in Articles 6–8 was considerably low. For example in the year 2010 only 0.5% of outgoing requests to another Member State under the Dublin ii-Regulation referred to family reasons. Only 0.1% of outgoing requests were based on humanitarian grounds (Article 15).13 Previous evaluations had already revealed the same picture.14 Though it would have to be expected that the percentage would increase when authorities, lawyers and applicants knew about rights and obligations this did not really materialise. This still low amount has a variety of reasons. On the one hand the scope of the provisions was too tight and provided family unity only for certain catego­ ries of family members under certain conditions, but left considerable gaps. Furthermore the practical application, the lack of information of protection seekers about the possibilities to be united with family members or the lack of knowledge how to trace family members, interviews which did not lead to the tracing of all relevant family links and certainly also ineffective remedies led to the result that families could not be united.15

12

13 14

15

provides for the unity of minors with family members. Article 4 (3) reads: ‘For the pur­ poses of this Regulation, the situation of a minor who is accompanying the asylum seeker and meets the definition of a family member set out in Article 2, point (i), shall be indis­ sociable from that of his parent or guardian and shall be a matter for the Member State responsible for examining the application for asylum of that parent or guardian, even if the minor is not individually an asylum seeker. The same treatment shall be applied to children born after the asylum seeker arrives in the territory of the Member States, with­ out the need to initiate a new procedure for taking charge of them’. See also Regulation 1560/2003 of 2 September 2003 laying down detailed rules for the application of Regulation 343/2003 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, oj L 222, 5 September 2003, 3. ecre, Dublin ii Regulation, Lives on hold, European Comparative Report (February 2013). See for another project and two project reports on the practical implementation of Dublin . Ibid 22. Commission staff working document accompanying document to the Report from the Commission to the European Parliament and the Council on the evaluation of the Dublin system – Annex to the communication on the evaluation of the Dublin system, com(2007) 299 final. ecre (n 12) 54–58, 61–64.

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The Commission saw one of the reasons why such little use was made of the provisions in the fact that many Member States required dna evidence before accepting responsibility. The Commission consequently recommended that States should require such evidence only as a last resort.16 An extract of the already mentioned comprehensive evaluation perfectly summarises some findings: P. 6: Sometimes the presence of family members in the territory of Member States is not taken into account and Member State responsibil­ ity is assigned on the basis of another ground contrary to the hierarchy of criteria. Even if the family provisions are considered Art[icles] 7, 8 and 14 and/or the humanitarian clause are frequently applied in a restrictive manner leading to many instances of families being separated under the Dublin Regulation in a manner inconsistent with Member States obliga­ tions enshrined in Art[icle] 8 European Convention on Human Rights (echr) and Art[icle] 7 Charter of Fundamental Rights (cfr). Whether or not this practice amounts to a violation of the mentioned provi­ sions has to be examined in each individual case. However it has to be criti­ cised in general that States only quite restrictively apply family unity criteria, though the whole allocation system has based its legitimacy on the aim to unite families as far as possible. The underlying values of European Union Law and the provisions of the cfr17 require that States only establish a system where family unity is guaranteed and where States facilitate the unity of fami­ lies as far as possible. The Commission reached a similar conclusion as the above mentioned ngo18 evaluation.19 The Commission explicitly concluded that the criteria on family unity are rarely applied in practice.20 The family unity criteria enumerated in Articles 6–8 were supplemented by Article 14 Dublin ii-Regulation. Article 14 provided for the unity of the family under certain conditions in cases where several members of a family submit­ ted applications for asylum in the same Member State simultaneously, or on dates close enough for the procedures for determining the Member State 16 17 18 19 20

Ibid 24. Charter of Fundamental Rights of the European Union, oj C 326, 26 December 2012, 391 (current version, entry into force 1 December 2011). ecre (n 12). Commission Staff Working Document (n 14), 23f. Ibid 23.

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responsible to be conducted together, and where the application of the criteria set out in the Regulation would have led to a separation. Thus the legislator already saw that the application of the criteria could lead to a separation and wanted to close some obvious gaps. As it has always been clear that not all possible scenarios regarding the necessity or the wish to allocate or resume responsibility for family mem­ bers could have been covered by the regular criteria, exceptional clauses were included. Exceptions could be or had to be based on the application of the dis­ cretionary clauses. A state obligation could arise and a State could be obliged to assume responsibility even if that State would not be responsible according to the criteria, if the separation of family members would lead to a violation of the right to family life. Exceptional clauses were contained in two provisions of the Dublin ii-­ Regulation, the sovereignty clause in Article 3(2) and the humanitarian clause in Article 15. The jurisprudence of the Austrian Constitutional Court might serve as an example for a reasoning in which a Court required that the authorities respect the right to family life and apply the sovereignty clause if otherwise an unjusti­ fied interference into Article 8 echr would occur. The Austrian Constitutional Court held in standing jurisprudence that Austria had to assume responsibility based on Article 3(2) Dublin ii-Regulation if the application of the criteria would lead to a violation of Article 8 echr.21 3

Court of Justice of the European Union Cases Regarding Family Unity and Unaccompanied Minors under the Dublin ii-Regulation

The European Court of Justice (ecj) respectively the Court of Justice of the European Union (cjeu) was quite frequently asked to interpret provisions of  the Dublin ii-Regulation and to answer questions on the application or ­interpretation of the Asylum Directives. Only one case however was directly based on family unity in the Dublin system. It concerned the interpretation of the  humanitarian clause in Article 15 Dublin ii-Regulation. Up to now the ­family unity criteria of the Dublin iii-regulation have not been interpreted by the cjeu.

21

See e.g. Austrian Constitutional Court, 8 March 2001, G 117/00, VfSlg. 16122; Austrian Constitutional Court 29 June 2013, U 1446/2012. The asylum authorities have to apply Art. 3 (4) dc where an unjustified interference with Article 8 echr would occur.

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In the case K v Bundesasylamt22 the Court had to interpret the humanitarian clause in Article 15(2) Dublin ii-Regulation. The Court decided that a Member State which was not responsible became responsible when Article 15(2) was fulfilled and had to assume all the obligations going along with the responsibil­ ity. Article 15(2) provided that in cases in which the person concerned was dependent on the assistance of the other on account of pregnancy or a newborn child, serious illness, severe handicap or old age, Member States should normally keep or bring together the asylum seeker with another family mem­ ber present in the territory of one of the Member States, provided that family ties existed in the country of origin. In this case the daughter-in-law of the asylum seeker was dependent on the asylum seeker’s assistance because she had a new-born baby and suffered from a serious illness and handicap. The Court concluded that in such special circumstances the Member State where the dependent person was present had to assume responsibility. Thus Austria had to assume responsibility for the mother in law. According to the judgment it did not matter that mother or daughter-in-law were not covered by the defi­ nition of a family member in Article 2(i) Dublin ii-Regulation. The interpreta­ tion led to the aforementioned result that the State, where the dependent family member was present, was responsible. This result was independent from whether or not the other State made a request. Though the case ma, bt, da23 did not relate to the unity of families but to the allocation of responsibility for unaccompanied minors, the case has to be mentioned in this context of human rights of families and minors. The minors had lodged asylum applications in more than one Member State. The cjeu decided that the Member State where the minors were present was responsi­ ble. The judgment referred to the fact that the wording of the provisions and especially the wording of Article 6 Dublin ii-Regulation did not give an answer and did not solve the problem. The Court thus based the interpretation on object and purpose of the Regulation and came to the conclusion that the pro­ cedures should be as short as possible, as the best interest of the children had to be taken into account. The best interest is also guaranteed by Article 24(2) cfr and requires that for States the child’s best interest must be a primary consideration in all actions relating to children.24 Thus – according to the cjeu – lengthy allocation proceedings have to be avoided. 22 23 24

Case C-245/11 K v Bundesasylamt [2012] ecli:eu:C:2012:685. Case C-648/11 The Queen, on the Application of ma, bt, da v Secretary of State for the Home Department [2013] oj C 65. Charter of Fundamental Rights of the European Union (n 19), Article 24(2): ‘In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration’.

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Concerning the best interest of the child it has to be mentioned that the Dublin iii-Regulation already refers to the best interest of the child four times in the Preamble, once in the definitions and most important in Article 6, where special guarantees for minors are contained. The situation of unaccompanied minors has to be seen in the connection with family unity as far as the minors should preferably be united with their families. Though one has to read the provision in the Dublin iii-Regulation in a way that a Member State, where an unaccompanied minor is present, is obliged to assume responsibility, the Commission published a proposal for an amend­ ment in June 2014.25 It was already negotiated that such an amendment should be inserted if the interpretation and reasoning in the judgment of the Court indicate the necessity of such an amendment. The text should finally deter­ mine the responsibility of the State where the minor is present and should eliminate any interpretative uncertainties. The two judgments clearly indicate that the cjeu interprets provisions of the Regulation in a way which enhances the protection of unaccompanied minors and families. 4

Improvements and Possible Gaps in the Dublin iii-Regulation

The Dublin iii-Regulation intends to close some gaps. The Preamble explicitly refers to the aim that ‘respect for family life should be a primary consideration of Member States when applying this Regulation’.26 The Preamble is generally quite ambitious concerning the aim to unite families and – as already mentioned above – concerning the obligation to respect the best interest of the child.27 The wording and the references to international obligations, human rights treaties, the frc and the enumeration of aims based on a full application of human rights taking into account all relevant factors is really impressive, even more impressive than 25

Proposal for a Regulation amending Regulation 604/2013 as regards determining the Member State responsible for examining the application for international protection of unaccompanied minors with no family member, sibling or relative legally present in a Member State, com(2014) 382 final, Brussels, 26 June 2014, Article 8(4)(a): ‘Where the unaccompanied minor has no family member, sibling or relative legally present in a Member State as referred to in paragraphs 1 and 2, the Member State responsible shall be the one where the unaccompanied minor has lodged an application for international protection and is present, provided that this is in the best interests of the minor’. 26 Dublin iii-Regulation (n 4), recital 14. See also C. Filzwieser and A. Sprung (n 4) 61, 88. 27 See n 3.

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the aims specified in preambles of human rights treaties. The aims mentioned are: The application of the Regulation should lead to the processing of claims of mem­ bers of a family together. It should allow that the decisions taken in respect of them are consistent and the members of one family are not separated. Furthermore it is intended that the existence of a relationship of dependency between an applicant and the child, sibling or parent on account of the applicant’s pregnancy or maternity, state of health or old age, should become a binding responsibility criterion. When the applicant is an unaccompanied minor, the presence of a fam­ ily member or r­ elative on the territory of another Member State who can take care of him or her should also become a binding responsibility criterion.28 It is also important to mention that the definition of family members in the Regulation has been slightly widened and there is also an additional definition of relatives. ‘Relative’ means the applicant’s adult aunt or uncle or grandparent who is present in the territory of a Member State.29 The clauses on the alloca­ tion of the responsibility of unaccompanied minors also provide for the unifi­ cation with relatives if no family members are present. This consequence is certainly to be seen as an improvement as it allows more children to be united 28

29

The Preamble of the Dublin iii-Regulation (n 4) continues that in accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with the Charter of Fundamental Rights of the European Union, respect for family life should be a primary consideration of Member States when applying this Regulation. Recital 16 and 17 read as follows: ‘(16) In order to ensure full respect for the principle of family unity and for the best interests of the child, the existence of a relationship of dependency between an applicant and his or her child, sibling or parent on account of the applicant’s pregnancy or maternity, state of health or old age, should become a binding responsibility criterion. When the applicant is an unaccompanied minor, the presence of a family mem­ ber or relative on the territory of another Member State who can take care of him or her should also become a binding responsibility criterion. (17) Any Member State should be able to derogate from the responsibility criteria, in particular on humanitarian and compas­ sionate grounds, in order to bring together family members, relatives or any other family relations and examine an application for international protection lodged with it or with another Member State, even if such examination is not its responsibility under the binding criteria laid down in this Regulation. (18) A personal interview with the applicant should be organised in order to facilitate the determination of the Member State responsible for examining an application for international protection. As soon as the application for inter­ national protection is lodged, the applicant should be informed of the application of this Regulation and of the possibility, during the interview, of providing information regarding the presence of family members, relatives or any other family relations in the Member States, in order to facilitate the procedure for determining the Member State responsible.’ Article 2(h) Dublin iii-Regulation (n 4).

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with persons taking care of them. Procedural rules and rules on information sharing and rules on establishing the facts also cover information concerning relatives. Articles 8 to 10 Dublin iii-Regulation stipulate the unification of families. Article 8 regulates unification of minors with family members, sib­ lings and relatives containing details, where only the practical application will show if the scope is considerably widened or if only some very specific factual situations are covered. Article 9 provides for unification with beneficiaries of international protec­ tion. This is certainly a progress as also subsidiary protection is a reason for family unification, meaning that the responsibility is allocated to the State where a family member has been granted a subsidiary protected status. Article 10 again covers unification with family members whose application for international protection in that Member State has not yet been the subject of a first instance decision on the merits. Article 11 contains provisions regarding family unity in a strict sense. These rules were previously contained in Article 14 Dublin ii-Regulation. Now they are placed in the correct order and formally precede the application of other criteria in the hierarchical order. The provision facilitates that the applications of family members and/or minor unmarried siblings who submit applications in the same Member State simultaneously, or on dates close enough for the procedures for determining the Member State responsible to be conducted together, are examined by the same Member State. This State is determined according to the rules set out in Article 11. These rules should impede the sepa­ ration of these persons. Without doubt these additional possibilities allow that more families are united. Article 6 furthermore provides for special guarantees for minors and explicitly obliges Member States to assess the best interests of the child and to closely cooperate to take family reunification possibilities into account. As still scenarios might arise which are not covered by the provisions on family unification, the exceptional clauses are of relevance for these cases. Article 17 Dublin iii-Regulation combines the sovereignty clause and the humanitarian clause under the heading discretionary clauses. Article 16 contains provisions on dependent persons and provides for reuni­ fication of dependent persons with family members taking care of them. Though Article 16 does not formally precede the other criteria in the hierarchi­ cal order, it obliges Member States to unite dependent persons if the criteria are fulfilled. Though the wording of the provision is not clear in this regard as is says ‘shall normally’ there is nevertheless an obligation to unite.30 This ­conclusion has indirectly been confirmed by the jurisprudence of the cjeu 30

See also Filzwieser and Sprung (n 4) 152.

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and the judgment K v Bundesasylamt,31 which is analysed above.32 Article 16 thus precedes the application of the other criteria, if the conditions are ful­ filled. This argument is confirmed by the wording of Article 17, which allows Member States to accept the responsibility or to ask another State to accept responsibility in case certain humanitarian, cultural or family reasons exist.33 Article 17 applies ‘even where that other Member State is not responsible under the criteria laid down in Articles 8 to 11 and 16’ (emphasis added). Article 17 thus refers to Article 16 as a binding criterion. Dependency is not defined as such, but reasons for dependency are enu­ merated. They comprise pregnancy, a new-born child, serious illness, severe disability or old age. The categories of persons are children, siblings or parents legally resident in one of the Member States, or if the other way round the child, sibling or parent legally resident is dependent. Member States shall nor­ mally keep or bring these persons together. Article 15 (2) Dublin ii-Regulation has been reformulated and is now con­ tained in the just mentioned Article 16 Dublin iii-Regulation. This new provi­ sion on dependent persons does not cover special situations of dependency of relatives as they occurred in the case K v Bundesasylamt.34 Though the judg­ ment of the Court was already pronounced in November 2012 and there would have been the possibility to formulate Article 16 in a broader way, this Article only provides for the unification of children, siblings or parents legally resident in one of the Member States. As the cjeu decided that the responsibility is given even if the persons concerned are not covered by the definition it is legitimate to conclude that scenarios of dependency of family members not mentioned in Article 16 have to be decided based on the application of the humanitarian clause in Article 17(2) Dublin iii-Regulation and families have to be united. In general both exceptional clauses, the sovereignty and the humanitarian clause, provide further possibilities to unite families. The humanitarian clause stipulates that either the Member State where the application was filed or the responsible Member State may request another Member State to take charge to bring family members together. The provision was created to allow States to take humanitarian grounds based in particular on family or cultural consider­ ations into account. A State could also assume responsibility based on the sovereignty clause, this however depends on the national law of the State in question. Already in 31 Case C-245/11 (n 22). 32 See above 3. 33 Ibid. 34 Case C-245/11 (n 22).

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the evaluation of Dublin ii conducted and published in 2007 the Commission encouraged States to apply also the sovereignty clause for humanitarian rea­ sons. The Commission argued that ‘this appears to correspond to the underly­ ing objective of this provision’.35 As it is obvious that often scenarios arise which do not fall under the scope of the family unity provisions, the sover­ eignty clause would be an option for states to unite family members in cases which are not explicitly covered by special provisions. 5

Procedural Rights Regarding Family Unity

As the evaluation shows, major gaps concerning the practical application of existing criteria were detected.36 Thus also additional procedural guarantees had to be included. In order to ensure a proper application of the criteria based on family unity, procedural rules and especially rules governing the interview have to take into account that it is necessary to facilitate family reunification. This is also confirmed by the aims stated in the Preamble.37 Dublin iii also provides for a right to information. Applicants have the right to be informed about the criteria for determination of the responsible State and consequently they also have to be informed about the criteria which are based on family reasons. Also a personal interview must be hold where the applicant should be given the possibility to inform about family members present in one of the Member States. In order to identify family relations, the interview has to take into account that the applicant must have the possibility to reveal all facts about members of his or her family present. There are spe­ cial information obligations concerning minors. Article 4(3) provides that the Implementing Regulation has to contain the obligation that the Commission draws up a common leaflet, as well as a specific leaflet for unaccompanied minors, containing information. These leaflets have been included in the Annexes to the Implementing Regulation.38

35 36 37 38

Commission Staff Working Document (n 14) 21. ecre (n 12) and Commission staff working document (n 14). Regulation (eu) No. 604/2013 (n 4) and for the Preamble see n 28. Implementing Regulation 118/2014 of 30 January 2014 amending Regulation 1560/2003 lay­ ing down detailed rules for the application of Regulation 343/2003 establishing the crite­ ria 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, oj L 39, 8 February 2014, 1.

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Information is certainly necessary and it is to be seen as a positive develop­ ment, that additional information obligations have been extended, but prac­ tice shows that they are often not really useful for applicants because of language and translation problems, lack of understanding of legal conse­ quences of possible remedies and simply because of insufficient practical implementation of information obligations. As the evaluations show, a conse­ quent information given by legal counsellors, leaflets with clear instructions, clear questions in the interviews and a pertinent observance of family unity may lead to an extension of family unification. Also the Preamble of the Implementing Regulation adopted by the Commission refers to the aim that the efficiency should be increased as regards ‘the cooperation on reuniting family members and other relatives in the case of unaccompanied minors and dependent persons’.39 The Regulation contains details about the evidence concerning legal residence of family members. It also contains a specimen of a standard form on the exchange of information on children, siblings or parents in case of dependency (Annex vii). As all these Articles on families are quite detailed, it may be assumed that the Member States interpret and apply them in a different way. Preliminary proceedings on the interpretation will be a logical consequence. 6

Provisions Regarding Family Unity in the Directives Building the Common European Asylum System

Family unity cannot be guaranteed by the application of the Dublin iii-Regu­ lation alone but has to be supported by the provisions transposing and imple­ menting the Reception Conditions Directive40 and to a certain extent also the Procedures Directive.41 The recast Reception Conditions Directive takes into account that there are special needs of families and that the unity of families should be an essential goal. The Directive contains provisions on tracing of family members of unac­ companied minors. This tracing seems to be essential and crucial as the evalu­ ation results show that Member States often did not sufficiently investigate if applicants do have family members in other Member States and thus would fall under the Dublin criteria for family unity. Article 23 provides that Member States, when assessing the best interests of the child, have to take due account 39 Ibid. 40 Directive 2013/33/EU (n 6). 41 Directive 2013/32/EU (n 7).

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of family reunification possibilities and that they shall start tracing the mem­ bers of the unaccompanied minor’s family, where necessary with the assis­ tance of international or other relevant organisations, as soon as possible after an application for international protection is made. As the Dublin procedure starts when an application is made, the tracing process has to start at that time as well. The provisions of the Reception Conditions Directive apply from the time when an application is made. This result is detectable from an interpreta­ tion of the provisions of the Directive and was confirmed by the cjeu in the judgment in the case Cimade/Gisti.42 The Court decided that the obligations apply from the point of time when the application is filed and thus also during the Dublin determination procedure. The recast Reception Conditions Directive provides that Member States shall take appropriate measures to maintain family unity as far as possible regarding accommodation of families. This ‘as far as possible’ restriction means that it is not necessarily guaranteed that families are accommodated together. This consequence however should be limited to very exceptional circum­ stances. The cjeu held it its judgment Saciri et al. that the amount of financial allowances must be sufficient to enable minor children to be housed with their parents, so that the family unity of the asylum seekers may be maintained.43 The Court clarified that Member States have to guarantee that minor children are accommodated together with their parents and generally confirmed the importance of family unity of applicants. The Procedures Directive does not contain special provisions serving the purpose to lay the basis for family reunification. The reason might be that they are already laid down in the Dublin iii-Regulation itself and in the Reception Conditions Directive (tracing of family members of minors). The general framework of the interview, the translation, procedural rules and remedies however are essential for facilitating family unity during the procedure. Article 25 contains procedural guarantees for unaccompanied minors. Also the provi­ sions on age assessment contained in Article 25 are very important. The meth­ ods for age assessment and the scientific value of these methods are quite disputed. Article 25 stipulates that medical examinations have to be performed with full respect for the individual’s dignity. There is however no special assess­ ment procedure foreseen. 42

43

Case C-179/11 Cimade and Groupe d’information et de soutien des immigrés (gisti) v Ministre de l’Intérieur, de l’Outre-mer, des Collectivités territoriales et de l’Immigration [2012] oj C 366, 12. Case C-79/13 Federaal agentschap voor de opvang van asielzoekers v Selver Saciri et al. [2014] ECLI:EU:C:2014:103, 46.

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The Qualification Directive provides for a provision on family unity in its Article 23.44 Regarding the content the provision corresponds to Article 8 Dublin iii-Regulation. Dublin rules however regulate the responsibility for carrying out the determination procedure for international protection whereas the Qualification Directive provides for unity either after carrying out a proce­ dure on the merits or just on the assumption that the person does not indi­ vidually qualify for such protection. This person should nonetheless be entitled to claim the benefits referred to in Articles 24 to 35 Qualification Directive. If unification is possible without a new procedure and rights identical to the asylum status are granted, this is certainly a situation which is to be seen as a positive development. It might also explain why little use is made of some Dublin provisions (the new Article 9) on family unity. 7

Family Reunification for Recognized Refugees in the Family Reunification Directive

The Family Reunification Directive contains a special chapter on family reuni­ fication of recognized refugees.45 Recognized refugees can be united with their family members also on the basis of this Directive provided that they fulfil the criteria specified for unification there. Chapter v only deals with family reuni­ fication of recognized refugees, but does not cover persons under subsidiary protection. Reunification may be restricted to family relationships predating the entry. Chapter v regulates some details and exceptions and also provides for reunification of unaccompanied minor refugees with family members. The practice that only little use is made of family unity of recognized persons based on Dublin may also be explained by the existence of the possibility to family reunification based on Chapter v of this Directive. It is however to be seen as a positive development that family reunification – at least for recognized refu­ gees – is covered by this Directive. Also family unification for persons with a subsidiary status should be included in the Directive. This intention is on the agenda of the Commission. In a 44

45

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 ben­ eficiaries of international protection, for a uniform status for refugees or for persons eligi­ ble for subsidiary protection, and for the content of the protection granted, oj L 337, 20 December 2011, 9. Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, oj L 251, 3 October 2003, 12.

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Communication from April 2014 the Commission stressed that the Directive should not be interpreted as obliging Member States to deny beneficiaries of sub­ sidiary protection the right to family reunification.46 The Commission considers that the humanitarian protection needs of persons benefiting from subsidiary protection do not differ from those of refugees, and encourages Member States to grant family reunification also to persons under subsidiary protection.47 8 Conclusions Dublin iii brought some improvements regarding the criteria on family unity and family reunification, which might cover cases which were not covered by Dublin-ii. Extended procedural rules which should guarantee that applicants get sufficient information and which should facilitate the tracing of family members might also lead to improve family unity. The two judgments men­ tioned indicate that the cjeu interprets the provisions of the Regulation in a way which confirms the weight of the right to family life and enhances the protection of family unity and of unaccompanied minors. All legal acts comprising the ceas extended the rights of unaccompanied minors and contain certain guarantees which should ensure that their special situation as unaccompanied and thus vulnerable applicants is taken into account. These guarantees include information rights, obligations to trace family members and procedural guarantees. These provisions support the fac­ tual implementation of family unity. The frc has to be respected when applications are processed. Consequently also the best interests of the child have to be taken into account and respected as well as the right to private and family life. The aims stipulated in the Regulations and in the Directives, especially in their Preambles confirm the intention to unite families and to take the best interests of the child into account in quite an impressive way. It seems to be likely that also the application in practice allows more families to be united. As however only the practical evaluation of the application of Dublin-ii really revealed certain deficiencies, such assessments will be required to show how far the improvements really go.

46

Communication from the Commission to the European Parliament and the Council on guidance for application of Directive 2003/86/EC on the right to family reunification, COM/2014/0210 final, 3 April 2014. 47 Ibid.

chapter 7

The Dublin System, Solidarity and Individual Rights Madeline Garlick* 1 Introduction The ‘Dublin’ system,1 which allocates responsibility for determining asylum claims among European Union (eu) and selected other European States, is seen by its supporters as a ‘cornerstone’ of the Common European Asylum * Chief of Protection Policy and Legal Advice Section, Division of International Protection, unhcr; Guest Researcher, Centre for Migration Law at Radboud University, Nijmegen, The Netherlands; International Migration Initiative (imi) Fellow with the Open Society Foundations and the Migration Policy Institute (Europe). This chapter is based on work undertaken as part of the author’s doctoral research. It contains the opinions of the author and does not represent the views of unhcr or the United Nations. 1 The term ‘Dublin system’ is used to refer to the 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), oj L 180/31, 29 June 2013 (hereafter ‘the 2013 Regulation’ or ‘Dublin iii’), and its predecessor Council Regulation 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, oj L 50/1, 25 February 2003 (hereafter ‘the 2003 Regulation’ or ‘Dublin ii’), as well as 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, oj 2013 L 180/1, 29 June 2013 (hereafter ‘the Eurodac Regulation’ or ‘Eurodac’) and its predecessor Regulation 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, oj L 31/1, 15 December 2000, as well as relevant implementing Regulations (Regulation 118/2014 of 30 January 2014 amending Regulation 1560/2003 laying down detailed rules for the application of Regulation 343/2003 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, oj L 39, 8 February 2014, 1). These instruments bind eu Member States, with Denmark’s participation (pursuant to its agreement with the European Communities, oj 2006 L 66/38), as well as also Iceland and Norway (pursuant to agreement, oj 2001 L 93/38 and Protocol oj 2006 L 57/15); and Liechtenstein (oj 2008 83) and Switzerland (oj 2008 L 53). This term is also commonly used to refer to the institutional and procedural arrangements in place for the application of the Regulations, including the work of the Dublin units at eu and national level.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004308664_008

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System (ceas).2 Its detractors, by contrast, point to the significant problems that have been documented in its operation, including its negative impact on the lives of many individual asylum-seekers and their families – but also for its failure to further the objective of solidarity and fair sharing of responsibility for asylum within the eu which the Treaties require.3 This chapter argues that the Dublin system exemplifies a tension which exists between the perspectives of different Member States on solidarity for asylum in the eu, including the circumstances where it is needed or deserved, and the extent to which it should be conditioned upon a demonstration of readiness to assume responsibility for fulfilment of eu obligations. It examines the aims and impact of Dublin in light of available evidence on its application, including areas where serious questions arise about the compatibility of practice under Dublin with fundamental rights obligations under international and European law. The chapter also describes selected eu measures associated with the concept of solidarity for asylum in the eu, aimed at redressing imbalances and gaps in the ceas, including some arguably caused or exacerbated by Dublin. In conclusion – it considers their potential for ensuring higher standards of protection and fairer sharing of responsibility for international protection and fundamental rights in the eu. The Dublin system originated as a measure to manage the effects of free movement across internal borders within the Schengen zone, and particularly the movement of asylum-seekers.4 However, today it produces a number of perverse and unintended effects, including intense suffering for many individuals and families subject to the system, without effectively controlling the movement of asylum-seekers across borders. Given the small proportion of asylum-seekers effectively transferred under Dublin, the intense political focus on the system could be seen to distract attention and resources from the major challenge of ensuring that Member States’ national asylum systems function 2 European Council, The Stockholm Programme – An Open and Secure Europe Serving and Protecting the Citizens, oj C 115/1, 4 May 2010, 32. 3 Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, oj C 306, 17 December 2007 (entry into force 1 December 2009), Article 80. 4 For a detailed analysis of the original Schengen Convention of 1990 and its provisions on responsibility for asylum applications within the border-free Schengen area, as well as the Dublin Convention which overtook it, see G. Noll, Negotiating Asylum: The eu Acquis, Extraterritorial Protection and the Common Market of Deflection (Martinus Nijhoff 2000) Chapter 4. A description and analysis of the history of the Dublin Regulation within the ec/eu legal order, see A. Hurwitz, The Collective Responsibility of States to Protect Refugees (oup 2009).

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effectively in line with their legal obligations. Greater attention to achieving more effective implementation of eu standards, it is argued, could serve more efficiently to ensure that the rights of asylum-seekers and refugees are respected, and that States are equipped to respond to the demands of those seeking protection, in a consistent way. First adopted in 2003, the Dublin Regulation was amended, along with the other asylum instruments adopted in the first phase of harmonisation, in a recast process that was characterised by difficult and sensitive negotiations between the Council and the Parliament up to mid-2013. While a number of significant changes were made, chiefly through the strengthening of procedural safeguards in the Dublin process, the basic premises of the system and its criteria for allocating responsibility for asylum claims remained unaltered. This analysis will accordingly consider the scope for the revised Dublin Regulation to address some of the challenges relating to individual rights and solidarity which have resulted from the system’s implementation in the past. 2

Aims of the System

The Dublin Regulation of 2003 (‘Dublin ii’), as well as the recast Regulation of 2013 (‘Dublin iii’) articulates several clear objectives, including first and foremost, that of providing within the ceas ‘a clear and workable method for determining the Member State responsible for the examination of an asylum application’.5 This administrative rather than principle-oriented goal is repeated in the substantive text of the Regulation, in Article 1, indicating it lays down ‘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 stateless person’. Article 3(1) provides that ‘the application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter iii indicate is responsible’. The focus on ensuring that one, and only one, Member State shall examine a claim is clear, pointing to a central implicit objective of the system: eliminating multiple simultaneous or consecutive claims, and the consequent risk of duplicate examination of one asylum-seeker’s protection needs within the eu. In the words of the European Commission, the system’s main purposes include ‘prevent[ing] abuse in the form of multiple applications for asylum submitted by the same person in several Member States with 5 Recital 4 of the 2013 Regulation, corresponding to Recital 3 in the 2003 Directive.

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the sole aim of extending his or her stay in the Member States’.6 This distrust of asylum-seekers’ motives also extended to an assumption that people would move between Member States seeking higher levels of reception conditions or procedural standards, ‘targeted at those Member States perceived to grant the most favourable treatment to asylum seekers’.7 Aims for the Dublin system, as expressed in other parts of the Regulation’s Preamble, fall into two categories: those relating to protection of individuals, and those concerned with efficient procedures. This dual orientation is captured in Recital 3 of the Regulation, which states that the method for allocating responsibility should, ‘in particular, make it possible to determine rapidly the Member State responsible, so as to guarantee effective access to the procedures for granting international protection and not to compromise the objective of the rapid processing of applications for international protection’. The aim of guaranteeing ‘effective access’ is clearly of crucial importance for individual asylum-seekers, as is the requirement in the same recital for ‘objective, fair criteria both for the Member States and for the persons concerned’. The passages emphasising rapidity in the process, however, reflect an important goal for Member States. While asylum-seekers also have an interest in efficient processes that would not leave them in uncertainty for extended periods awaiting a decision on which State conducts their asylum procedure, eu asylum practice in the past has indicated that excessive emphasis on swiftness can lead to curtailment of safeguards in practice.8 The recast proposal for Dublin, tabled by the Commission in 2008, emphasised strongly its dual objectives of enhanced efficiency on the one hand, and  improved levels of protection on the other,9 implicitly acknowledging the  failure of the 2003 Dublin Regulation to attain these goals. Recital 9 of the  finally-adopted recast Regulation confirms the dual focus, stating the aim of the legislature in making ‘the necessary improvements, in the light of

6 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 stateless person, com(2008)820, 3 December 2008, 3. 7 V. Moreno-Lax, ‘Dismantling the Dublin System’ (2012) ejml 2. 8 unhcr, Improving Asylum Procedures: Comparative Analysis and Recommendations for Law and Practice - Key Findings and Recommendations, March 2010, Section 2.7; see also unhcr, Improving Asylum Procedures: Comparative Analysis and Recommendations for Law and Practice – Detailed Research on Key Asylum Procedures Directive Provisions, March 2010, Chapter 9. 9 European Commission (n 6).

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e­ xperience, to the effectiveness of the Dublin system and the protection granted to applicants’ (emphasis added). However, some observers would argue that the negotiations concerning the recast demonstrated greater emphasis on amendments aimed at improving efficiency over the strengthening of protection for procedural and substantive rights.10 Aims expressed in the recast relating to rights protection included an expanded reference to the Charter of Fundamental Rights, signalling the intention to ‘ensure full observance of the right to asylum guaranteed by Article 18 of the Charter’ as well as the rights recognized under Articles 1 (human dignity), 4 (prohibition on torture, inhuman degrading treatment or punishment), 7 (respect for private and family life), 24 (rights of the child) and 47 (effective remedies); as well as respect for family life (Recital 14 and Articles 6, 7, 8 and 15), family unity and best interests of the child in the context of dependency (Recital 16 and Articles 6 and 15). These references, like the acknowledgement that Member States are bound by their international legal obligations and case-law of the European Convention for the Protection of Human Rights and Fundamental Freedoms (echr) (Recital 32), do not alter Member States’ existing duties under international and European law, but their affirmation in specific binding provisions within Dublin represents a positive step. The risk that deficiencies or ‘collapse’ of asylum systems could result in rights violations is acknowledged in Recital 21 of the Regulation. However, the first danger underlined in that Recital is that such deficiencies or collapse ‘can jeopardise the smooth functioning of the system put in place’ under the Dublin Regulation – which then could lead to a violation of rights. The strong interest in upholding the Dublin system is evident from this wording, which does not acknowledge that the application of the Regulation itself, through a strict interpretation, might lead to hardship and infringements of the rights of individual asylum-seekers. The confidence of the Member States and the Parliament in the fundamental principles of Dublin, at the time of adoption of the recast, emerges clearly from the text. Recital 7 quotes the Stockholm Programme’s endorsement of Dublin which ‘remains a cornerstone in building the ceas, as it clearly ­allocates

10

See, for example, S. Peers, E. Guild, V. Moreno-Lax and M. Garlick (eds), ‘The Dublin Regulation’ in eu Immigration and Asylum Law, vol 3 (2nd edn, Brill, 2015); European Parliament, ‘Asylum-seekers: No Transfers to eu Countries Unable to Cope’, 19 September 2012, ; Eurasylum, Interview with Cecilia Wikstrom, October 2012 .

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responsibility among Member States for the examination of applications for international protection’. Recital 9 reiterates this, noting that ‘a well-functioning Dublin system is essential’ for the ceas. That recital also calls nevertheless for ‘a  comprehensive fitness check’ during its implementation, through an ‘evidence based-review of the legal, economic and social effects of the…system’. No steps have been taken by the Commission to conduct such a check, however, and its form, goals and consequences remain undefined. It is thus unclear to what extent this arrangement will have the potential to  ­identify and correct problems associated with Dublin’s functioning. Article 46 of the 2013 Regulation also requires an official report by the Commission to the Parliament and Council, including on proposed amendments, by 21 July 2016. However, it is not clear what political scope for far-reaching reform might be possible.11 3

Dublin and Solidarity

Among the various recitals and substantive provisions that refer, expressly or implicitly, to Dublin’s objectives, there is nothing that suggests it was intended as a burden- or responsibility-sharing instrument. The system’s original purpose, as conceived within the original small group of participating Schengen states, was to regulate the movement of third country nationals, and particularly asylum seekers, and specifically to allocate responsibility for determining their claims, without regard to the potentially different positions and capacities of the participating States.12 Successive policy documents have made clear that ‘the Dublin system (Dublin and Eurodac

11

12

In the Agenda on Migration, the Commission confirmed its intention to consider whether ‘a revision of the legal parameters of Dublin will be needed’: European Commission, A European Agenda on Migration, com(2015)240, 13 May 2015, 13; See also European Parliament confirmation hearing of the then Commissioner-designate for Home Affairs, Dimitris Avramopoulous, on 30 September 2014 . Although more effective burden-sharing may have been a desirable aim expressed by some at the time that the Dublin Regulation replaced the Convention, it did not eventuate in the new instrument. See R. Marx ‘Adjusting the Dublin Convention: New Approaches to Member State Responsibility for Asylum Applications’ (2001) 3 ejml 13; U. Brandl, ‘Distribution of Asylum-seekers in Europe? Dublin ii Regulation Determining the Responsibility for Examining an Asylum Application’ in P. de Bruycker and C. Urbano de Sousa (eds) The Emergence of a European Asylum Policy (Bruylant 2004) 36.

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Regulations) was not devised as a burden-sharing instrument’.13 These disclaimers do not, however, address regular criticism levelled at it for reportedly imposing disproportionate demands on some Member States, particularly at the Union’s external frontiers.14 The question of whether Dublin in fact imposes substantial additional ‘burdens’ on external border States is disputed. Data indicates that some of the major Dublin ‘sending’ States are also significant transfer destinations, including most notably Germany, but also Austria, Sweden and Norway; although Italy and Poland are also consistently among the major recipients.15 The Commission, in its 2007 evaluation of the system, concluded that, contrary to ‘the widely shared supposition that the majority of transfers are directed towards the Member States located at an external border, it appears that the overall allocation between border and non-border Member States is actually rather balanced’.16 Yet it also acknowledged that the Dublin system may ‘de facto result in additional burdens on Member States that have limited reception and absorption capacities and find themselves under particular migratory pressures because of their geographical location’.17 Even if absolute numbers of asylum-seekers actually transferred back to Member States at the external borders of the Union are limited, relative capacity also means that these numbers can impact significantly on Member States with weaker systems. The lack of burden-sharing rationale behind Dublin also emerges clearly from the design of its criteria, which make no reference to capacity. None of 13

14

15

16

17

European Commission, Green Paper of 6 June 2007 on the future Common European Asylum System, com(2007)301, 6 June 2007, 4; European Commission, Communication from the European Commission to the European Parliament and the Council, the Economic and Social Committee and the Committee of the Regions: Policy Plan on Asylum – An integrated approach to protection across the eu, com(2008)360, 17 June 2008. Four Member States in 2009 issued a position paper maintaining unequivocally that ‘Dublin Results in Added Burdens on Frontline Member States’: Cyprus, Greece, Italy and Malta, Quattro Paper, 13 January 2009, 4; C. Mainwaring, ‘Resisting Distalization? Malta and Cyprus’ Influence on eu Migration and Asylum Policies’, (2010) 31(4) rsq 48–49. In terms of asylum-seekers transferred under Dublin, Germany has featured among the top five receiving states from 2009–2014 inclusive, while Austria, Sweden and Norway feature in the top ten, with between approximately 500–900 transfers each on an annual basis in the five years from 2009, in eurostat, Annual Activity Reports, 2009–2013. European Commission, Report from the Commission to the European Parliament and to the Council on the evaluation of the Dublin system, com(2007)299, 6 June 2007. The Commis­ sion referred to 3055 transfers to eu external border States in 2005, compared to 5161 to other Member States. European Commission, Dublin Evaluation, com(2007)301 (n 16); European Commission, Green Paper (n 13).

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the Dublin criteria refer to or reflect in any way the respective size, development or resources in the asylum and reception systems of the Member States, which could be relevant to their ability to determine efficiently and accurately the claims allocated to them under the system. The decision during the recast process not to revisit or fundamentally alter the criteria, based on the Commission’s view that it would not be politically feasible to do so, indicates the lack of interest in tempering the effects of Dublin’s strict application, in cases where it could result in additional demands upon any given State. Rather than amending Dublin or ‘adopting a new overarching instrument’ on solidarity, the European Commission in its 2008 Policy Plan indicated its intention to create an array of ‘solidarity mechanisms’,18 including a study examining the possibilities of joint processing of claims; asylum expert teams to be coordinated by easo, and other proposals. The only element among these that could have addressed some of the immediate impacts of Dublin on Member States experiencing particular pressure was a proposal for a ‘temporary suspension’ mechanism that could exceptionally be used when Member States were unable to deal with asylum-seeker numbers.19 This draft provision was, however, rejected in the Council and does not appear in the recast Dublin Regulation. Aside from the lack of focus on solidarity between States, solidarity is also markedly absent at another level in the Dublin system – as regards solidarity between the eu and European States on the one hand, and asylum-seekers and refugees on the other. While States which perceive that they are affected by disproportionate burdens in the form of transfers might be concerned that it does not work in their favour,20 Dublin remains first and foremost a voluntary arrangement among those States, which they have created and adjusted based on their priorities and needs. Dublin’s presumption of safety and exemption for  States from a requirement to examine claims which are the responsibility  of others is justified on the basis ‘mutual trust’ between governments.21 This  entails an assumption that other States can be trusted to respect the 18 19 20

21

European Commission, Policy Plan on Asylum, com(2008)360 (n 13) 8, Section 5.1.2. European Commission, Dublin Recast Proposal, com(2008)820 (n 6). E. Guild, C. Costello, M. Garlick, V. Moreno-Lax, M. Mouzourakis, ‘New Approaches, Alternative Avenues and Means of Access to Asylum Procedures for Persons Seeking International Protection’ (2014) European Parliament, dg for Internal Policies, Policy Department C, pe 509.989, Annex iii: see discussion of views of Cyprus, Italy and Malta on Dublin. mss v Belgium and Greece Appl no 30696/09 (ECtHR, 21 January 2011) para 330; Joined Cases C-411/10 and C-493/10, ns v Secretary of State for the Home Department and me and Others v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform, [2011] ecr I-13905, paras 78–83.

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f­undamental rights of asylum-seekers, as well as their obligations under the eu acquis.22 If an asylum-seeker has been through the asylum procedure in a Dublin State, this reasoning holds that she or he can be denied a substantive examination in another participating country. Moreover, where the Dublin res­ ponsibility criteria designate another State as responsible, the system allows the hosting Member State to transfer the asylum-seeker to the responsible State – an entitlement that was considered to be unfettered, until the European Court of Human Rights (ECtHR) determined in mss that such an approach could lead to serious violations of human rights, including refoulement. Yet the mutual trust is limited in its scope, and one-directional: while Dublin enshrines the principle that a negative decision by a Member State is recognized by other Member States,23 neither Dublin nor other instruments in the ceas provide for recognition of a positive asylum decisions, which means that refugees or subsidiary protection beneficiaries who are on the territory of another Member State do not have rights that are applicable in that State. Dublin does not address the situation of a person granted refugee status or subsidiary protection who might move onwards, as has occurred in numerous documented cases where conditions for those granted protection are not in line with the Qualification Directive, and shelter or sustenance may not be available.24 However, Eurodac now permits their fingerprints to be checked and visible in the database, which enables Member States to verify if a person was granted asylum previously elsewhere. The claims of such people may be rejected as inadmissible in the second Member State,25 and bilateral arrangements are frequently used to effect a transfer. Thus the principle of ‘mutual trust’ works only to the benefit of States wishing to transfer responsibility for asylum-­seekers and refugees, and not in the interest of asylum-seekers or people who have been found to need protection and hold a lawful right to stay in the eu. A crucial question arising in this context is how the Dublin system can be reconciled with the requirement for solidarity expressed in the Treaty on the 22 23 24

25

ns and me (n 21). 2013 Regulation Article 18(1)(d). In 2014, debate in France was triggered over groups of people living outside accommodation in Calais, including irregular migrants and asylum seekers, but also a number of recognised refugees who had received status in Italy. See H. Muir, ‘The Migrant Crisis in Calais Shows the eu’s Failure to See the Big Picture’ The Guardian (London, 5 September 2014) . 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), oj L 180/160, 29 June 2013, Article 33(2)(a).

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Functioning of the European Union (tfeu). Article 80, requiring that asylum measures and policies be implemented consistently with the principle of solidarity and fair sharing of responsibility, was not in place when Dublin was designed, or the Regulation incorporated its schema into Community (sub­ sequently eu) law. However, as an obligation binding under primary law, any secondary instrument which could be seen to be inconsistent with this Treaty provision must be brought into line with its requirements. The Commission’s own admission that Dublin de facto imposes additional burdens on some Member States, as well as the repeated claims by some Member States of the problems that the system creates26 suggest that there is a significant risk of inconsistency. While the validity of the Dublin system in light of Article 80 has not been challenged before the Court of Justice, the Court has acknowledged that the principle of ‘mutual confidence’ or trust on which Dublin is based must be qualified in some circumstances. In its judgment in ns and me, the court found that while Member States should be able to assume that asylumseekers are treated in other Member States in compliance with fundamental rights, there may, in cases of ‘major operational problems’ such as those documented in the case of Greece in 2011, be a ‘substantial risk’ that their rights may be violated.27 Accordingly, it concluded that transfers under Dublin must be suspended in such cases. That decision followed the decision of the ECtHR’s Grand Chamber judgment in mss v Belgium and Greece, where the Strasbourg Court concluded that transfer of an asylum-seeker to Greece under Dublin was a violation of Article 3 of the echr (see further below). Those decisions triggered a major shift in practice by Member States, which have subsequently been unable to apply Dublin to effect transfers to Greece. The amendment to the recast Dublin Regulation, explicitly prohibiting transfers in case of a risk of inhuman and degrading treatment, is now a formal obligation under Article 3(2) that prevails over the other criteria, and confirms that mutual trust cannot be relied upon without exception. The Strasbourg Court’s later decision in Tarakhel28 has confirmed this, concluding that in circumstances where reception capacity and adequate standards are not guaranteed, would-be sending State authorities are required to seek specific assurances from the receiving 26

27 28

See Italy’s position on the need for reform of Dublin, in Guild, Costello, Garlick, MorenoLax and Mouzourakis, ‘New Approaches’ (n 20), Annex iii; see also statement of Italian Minister of Defence, A. Alfano, before the Italian Chamber of Deputies, 6 April 2014, ; M. Nestico, ‘Italian President Calls for Change in Asylum Policies’ ansa (8 October 2014). ns and me (n 21) paras 82–93. Tarakhel v Switzerland Appl no 29217/12 (ECtHR, 4 November 2014) paras 120ff.

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State that applicants would be received in conditions ensuing their needs and fundamental rights were respected. At the same time, the debate over Dublin and solidarity in the wake of ns and mss has had another interesting consequence in eu practice and policy. In light of growing concern at eu level over the problems in Greece’s asylum system, revealed starkly in the public proceedings before the courts in the mss and ns submissions and hearings, the Commission in 2010 put together an emergency funding package for Greece to support an Action Plan for the rebuilding of its asylum and migration system. These funds were provided alongside other financial contributions from other eu Member States, as well as ‘emergency support’ actions from the European Asylum Support Office (easo) including the deployment of ‘asylum expert teams’ consisting of officials made available by Member States; scaled-up operational measures from the un High Commissioner for Refugees (unhcr) to support the Greek authorities, and a range of other steps. The political readiness to support this programme of action for one Member State was unprecedented in the European asylum context. It is evident that Member States’ sudden interest in assisting the Greek asylum reform process was driven, or at least initially triggered, by their concern about the inability to transfer asylum-seekers under Dublin. Nevertheless, the net result is significant: it represents a mobilisation of funding, human resources, and political support that appears to represent a clear and practical manifestation of solidarity. However, there are important questions around the sustainability of such actions, which will depend largely on Greece’s political will – as well as its ability to invest the requisite financial resources, which could be extremely challenging in the country’s straitened economic circumstances.29 Thus while Dublin may at one level be seen as departing from the Article 80 principle, it could also from another perspective provide a source of motivation to Member States to invest in the shared endeavour of building and maintaining the ceas, by lending support to other Member States’ asylum systems, in their mutual interest. But this will depend on the ability and readiness of the courts, at domestic and European level, to play their role and supervise the legality of the system’s implementation and compel Member States to take 29

easo support was phased out at the end of 2014, along with much of the additional emergency funding provided by the European Commission, notwithstanding considerable remaining gaps, including a large case backlog and inadequate reception facilities: easo, Interim Assessment of the Asylum System in Greece, July 2014 .

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action where solidarity is needed to maintain adequate standards. At political and practical level, it also remains to be seen whether this at least partially positive outcome of the Greek crisis, in the form of efforts to address shortcomings in national systems highlighted by Dublin, will be replicated in other cases. As discussed below, the readiness of Member States to contribute to sustainable capacity-building through practical cooperation and other forms of eu solidarity has demonstrated limits, notably where other national interests are in play. 4

The Flawed Presumption of Consistent Compliance with Obligations: The Reverse of Solidarity?

The Preamble to the Regulation expresses clearly a basic assumption that all Member States will fulfil their legal obligations, as an underlying premise of the system: ‘Member States, all respecting the principle of non-refoulement, are considered as safe countries for third country nationals’.30 A Working Paper before the European Parliament when the Regulation was first under negotiation articulated the expectation that for Dublin to be effective, ‘a high level of harmonisation of the asylum procedures would be necessary’.31 Yet neither comprehensive observance of fundamental rights, including non-refoulement, nor consistent application of eu asylum standards, has been achievable across all of the eu Member States in the ceas to date. The European Commission, in its Policy Plan on Asylum of 2008, acknowledged that ‘the differences in decisions to recognize or reject asylum requests from applicants from the same countries of origin point to a critical flaw in the current ceas’, and that even after efforts to achieve legislative harmonisation, ‘a lack of common practice, different traditions and diverse country of origin information sources are, among other reasons, producing divergent results’.32 Moreover, during almost ten years following the Dublin Regulation’s entry into force, objective information and evidence had demonstrated that the assumption of safety for asylum-seekers in all Member States of the Union was not justified. In the most widely-known and documented case of Greece, the Grand Chamber of the ECtHR concluded that Greece was in violation of Article 3 30 31 32

Recital 3, 2013 Regulation. European Parliament, Asylum in the eu Member States: Working Paper, dg for Research, Civil Liberties series, libe 108 en i-2000 2000. European Commission, com(2008)360 (n 13) 3.

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because of the extremely poor reception conditions for asylum-seekers in Greece, which amounted to inhuman and degrading treatment;33 as well as the shortcomings in the asylum procedure, which placed applicants at risk of refoulement.34 The Court also concluded that Belgium had violated Article 3, having transferred the applicant to Greece despite information from unhcr and others about the conditions and weaknesses in the asylum system that awaited him. The Court further found a violation by Belgium of Article 13 echr in conjunction with Article 3, for failing to accord the applicant an effective remedy against a transfer decision,35 because the Belgian appeal body had not examined in substance the applicant’s request for suspension of transfer. The decision marked a watershed in Dublin practice, as it was the first judgment from the Grand Chamber of the ECtHR which concluded that defects in the asylum and reception systems in an eu Member State were so serious as to breach Article 3. Moreover, it was the first time that a court at that high level had found that the Dublin process, as applied by a Member State according to the letter of the Regulation, could lead to a breach of fundamental rights by a transferring State. By pronouncing itself so conclusively on the level of risk and seriousness of the breach of human rights that flowed from the application of Dublin in the instant case, the Court obliged Member States and the eu to reassess the operation of the entire system. The practice of Dublin transfers to Greece stopped, and at the time of writing, almost five years later, has not resumed. The Court of Justice of the eu, in the case of ns and me several months later, also found that Dublin transfers to Greece could breach Article 4 of the eu Charter of Fundamental Rights, which prohibits return to inhuman and degrading treatment. Subsequently, the European courts have not to date concluded that ‘­systemic deficiencies’ exist at such a level in another Member State, such that Dublin transfers should be suspended in all cases. However, there have been a number of important judgments by national courts that have concluded that transfer should be suspended in individual cases. These include, by way of illustration, national court decisions in relation to Malta, which have found that asylum applicants would be at risk of refoulement to their countries of origin; of detention in inadequate conditions in Malta; or of other rights violations due to

33 34

35

mss (n 21) paras 263–264. The Court found that the applicant in the case before it was at risk of expulsion to Turkey, from which he could have been expelled onwards to face persecution in Afghanistan: mss (n 21) paras 321–322. mss (n 21) paras 385–396.

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deficiencies in the asylum process.36 National courts have also suspended ­individual transfers to Hungary, due to the risk of inhuman or degrading treatment;37 and Ireland, due to that country’s opting out of the Reception Conditions Directive, which meant that non-transfer, according to a uk court, was in the best interests of the child.38 With respect to Italy, the ECtHR has also concluded that access to accommodation and other facilities for vulnerable people could not be guaranteed, and that official assurances that needs will be met will be required in some cases.39 In the case of Bulgaria, a dramatic increase in the number of asylum-seekers arriving over a short period in late 2013 overwhelmed the country’s asylum claim registration, reception and detention facilities, and denied applicants any effective access to the asylum procedure, adequate accommodation or the means of basic subsistence. From its accession to the eu in 2004, Bulgaria had received less than 1000 asylum claims on average per year; but by the end of 2013, 7,144 people had applied for asylum, including a large proportion of Syrians; an increase of over 500% by comparison with the previous year.40 This total – along with the approximately 10,000 people in total estimated to have entered irregularly at the border during the year – is likely to be a significant underestimate of the number of people arriving who were in need of protection, given that the overstretched registration system was incapable of recording the claims in a timely way of all those requesting asylum. At the end of 2013, with winter coming and Bulgaria unable to provide food, social assistance, shelter or health care, the European Commission was obliged to mobilise emergency funding assistance, unhcr and Non-Governmental Organisations (ngos) began to provide direct support to asylum-seekers (including the only meals and medical care initially available in reception centres), and selected other Member States offered bilateral aid. At Bulgaria’s request, the easo also put together an operational plan for the provision of ‘technical and operational assistance’ to the country’s registration, reception and asylum claim processing systems. unhcr issued a paper in January 201441 recommending that other Member States refrain from transferring asylum-seekers to Bulgaria under Dublin, a ­recommendation that a number of Member States followed for a temporary 36 37 38 39 40 41

Administrative court of Magdeburg, Decision No. 5A 328/11, 2012; Italian Council of State, cn 06992/2012; Federal Administrative Court of Switzerland, Decision D-2797/2010. Administrative Court of Stuttgart, Decision No. A 11 K 1039/12. uk Queens’ Bench, Northern Ireland, alj, AB and C [2013] niqb 88. Tarakhel v Switzerland (n 28). The total number of claims registered in 2012 was 1,387, in Bulgarian State Agency for Refugees, Annual Statistics, 2014. unhcr, unhcr Observations on the Current Asylum System in Bulgaria, 2 January 2014, available at .

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period, implicitly acknowledging the risk of violations of rights, as well as the unconstructive and burden-shifting impact that such returns would have had on Bulgaria at the time. However, unhcr revised its recommendation three months later in light of progress made with the externally-provided support (and reduced pressure as a result of limited new arrivals, following border-strengthening measures42), and concluded that Dublin transfers could resume on a limited basis.43 While some other observers disagreed with unhcr’s assessment and argued that conditions were still not ripe for Dublin returns,44 Member States resumed the sending of requests to Bulgaria to take back asylum seekers during the course of the year, and were preparing to send back some 3,600 people as of early 2015.45 The progressive evolution of Dublin practice and jurisprudence since the mss and ns and me judgments of 2011 demonstrates that not only courts and asylum advocates, but also asylum authorities of the Member States, concede that a presumption that there is consistent compliance with the acquis, and of respect for fundamental rights, cannot be made in an unqualified way. The findings of the Luxembourg and Strasbourg Courts that Member States have had access to information on situations where conditions were not in line with legal standards – that they ‘knew or ought to have known’,46 or ‘[could] not be 42

43 44

45

46

Bulgaria deployed approximately 1,400 new personnel to its border with Turkey in November 2013, with the stated purpose of deterring irregular migration, but not denying access to people seeking international protection. Nevertheless, after arrivals of approximately 1,000 people per week in October-November 2013, numbers of people entering and claiming asylum or otherwise dropped to less than 100 per week in December after the frontier was reinforced, and to 12 in the last week of December (Source: Bulgarian Helsinki Committee, April 2014). Reports also alleged that people (including Syrians) approaching the border were denied entry and handed back to Turkish border officials regardless of whether they signalled an intention to seek asylum. unhcr, unhcr Observations on the Current Asylum System in Bulgaria, April 2014 . Human Rights Watch, Containment Plan: Bulgaria’s Pushbacks and Detention of Syrian and Other Asylum-seekers and Migrants, April 2014, ; ecre, ecre Reaffirms its call for the Suspension of Transfers of Asylumseekers to Bulgaria under the Recast Dublin Regulation, 7 April 2014 . See also Human Rights Watch, Bulgaria: New Evidence Syrians Forced Back to Turkey, 18 September 2014, . A total of 8,000 requests had reportedly been made by end 2014, of which 3,600 were  accepted by Bulgaria: Euractiv, 3600 Dublin Returns to Bulgaria, 7 January 2015 . mss (n 21) para 358.

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unaware’47 of systemic deficiencies in the asylum process – creates a binding obligation to refrain from sending the asylum-seeker back to that Member States. This is not to say, however, that the courts have consistently found in favour of the rights of asylum-seekers. Some decisions have expressed clear deference to the right of States to determine how refugee protection responsibilities should be fulfilled. In the case of Abdullahi v Bundesasylamt,48 the Court of Justice of the European Union (cjeu) repeated its acceptance expressed in ns and me of the principle of ‘mutual confidence’ that should underpin Dublin, and the purpose of ‘avoid[ing] blockages in the system’ caused by the need to examine multiple applications by the same applicant. The Court found that Member States maintained wide scope to elect voluntarily to deal with specific claims under the discretionary clauses; but that the rights of applicants subject to Dublin, by contrast, were narrowly circumscribed. In its view, ‘the only way in which the applicant for asylum can call into question’ the assumption of responsibility by a State for his or her claim was to show there were ‘systemic deficiencies’ in its asylum system, and a resultant risk of inhuman or degrading treatment. The Court thus set the bar very high, implicitly suggesting that failures of various kinds that did not amount to systemic deficiencies would not permit an applicant to challenge a decision to transfer under Dublin. Thus while some of the leading decisions from the European courts have provided crucial safeguards against the risk of inhuman treatment, and served to highlight major weaknesses of the Dublin system, others suggest a stricter approach that would not accord the same weight to individual rights. The future development of the caselaw will thus be vital in determining whether Dublin could continue to expose asylum-seekers to potential violations of their rights in the name of preserving the current system for allocating responsibility for claims. It is to be hoped that a more rights- and protection-oriented approach will prevail, given the wide range of problems that arise in Dublin’s application in practice. 5

Dublin and the Rights of Asylum Seekers

5.1 Denial of Timely Access to a Procedure Despite the aims of Dublin swiftly to determine the responsible Member State, practice indicates that access to a substantive examination of a claim can take 47 48

ns and me (n 21) para 94. Case C-394/12, Shamso Abdullahi v Bundesasylamt (cjeu, 10 December 2013).

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many months. Under the revised deadlines for submitting and replying to transfer requests, as well as effecting transfers, the maximum length of the Dublin process should in most cases be nine months (if based on a Eurodac hit).49 However, observers have noted some significant cases where Member States regularly fail to respect the time limits prescribed by the Regulation. Greece has traditionally been an offender against time limits, including the deadline for replying for a request to accept responsibility, which was the basis for allocation of responsibility by default in many pre-2011 cases. However, long delays are also frequent in Austria and Germany, particularly in complex cases.50 Authorities attribute this to heavy caseloads, although the Dublin units in those countries are relatively well-staffed, compared to some other Member States.51 There are other problematic rules and practices that have been documented over recent years which pose serious obstacles to access to the examination procedure for people transferred under Dublin. In addition to Greece’s previous ‘interruption’ procedure, under which people absent from Greece for three months were no longer entitled to a substantive claim examination, Bulgaria until 2013 also routinely discontinued the asylum procedure for people who were absent from the country for three months or more, with the result that they could be returned to their countries of origin.52 In addition, Hungary implemented similar rules up to late 2012 under which people transferred back under Dublin were not treated as asylum-seekers, but as irregularly present people. After criticism from unhcr and ngos, a statement by the Hungarian Office for Immigration and Nationality in October 2012 gave assurances that the office would henceforth carry out a substantive assessment for all such claims.53 49

50 51 52 53

If the transfer is based on a ‘take back’ request supported by a Eurodac request, the time between the Eurodac ‘hit’ and transfer should be a maximum of 8.5 months (Articles 23(2), 25(2) and 29(1) of the 2013 Regulation). For a ‘take back’ case not based on Eurodac, the period should be 10 months (Articles 23(1), 25(1) and 29(1)). For ‘take charge’ cases, it may be 11 months from the asylum application to transfer (Article 21(1), 22 and 29(1)), unless an urgent reply to the initial request to take charge is sought. In each case, the ­six-month deadline for transfer may be extended by six months if the applicant is ‘imprisoned’ or a further six (to a maximum of 18 months) if the applicant has absconded (Article 29(1)). ecre, Dublin ii Regulation – Lives on Hold: European Comparative Report, February 2013, 92–93. Ibid 92. unhcr, unhcr Observations (n 43). ecre, Dublin ii Regulation – Lives on Hold (n 50) 67; unhcr, Note on Dublin Transfers to Hungary of People Who Have Transited Through Serbia – unhcr Observations on Hungary and Serbia as Countries of Asylum, October 2012.

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It would appear that a number of countries have treated claims from people returned under Dublin after extended periods, not as ongoing claims in progress, but as subsequent applications. This approach, used in the Netherlands, France and Italy, among others, has required applicants to submit evidence of new facts or circumstances in order to warrant a further examination of the claim. Other procedural disadvantages may also apply in such cases, such as non-suspension of decision pending appeals; and material detriment that may occur because an applicant may be required to wait, for example, for housing, which may also hinder his or her ability to pursue a claim effectively.54 By contrast, ecre noted an instance of good practice under Dublin in Slovakia, where border authorities were immediately informed by the Dublin unit when there is agreement on a transfer. This meant that they could ensure that the person was automatically admitted to the asylum procedure upon arrival.55 Information about the procedure and requirements for pursuing claims after transfer appears to be crucial to the ability in practice of asylum-seekers to pursue their claims in the Dublin process. For instance, if a claim has been substantively determined and rejected in the person’s absence, and short deadlines apply to appeal rights, it is crucial that she or he has adequate information about the timeframes and the requirements in order to challenge the negative decision, if relevant. The recast Regulation’s explicit obligation for Member States to provide asylum-seekers with written information about Dublin appears to be a positive step in this direction, although much depends on the political will and practical steps by the authorities to ensure such information reaches Dublin transferees.56 Unless such practical safeguards are in place and available, there is clearly a real possibility that asylum-seekers under Dublin can go without a substantive examination of their claims, and be at risk of refoulement. 5.2 Coercion as a Central Element According to a study commissioned by the European Parliament in 2014, ‘the Dublin system…appears to have become an instrument of coercion, with massive human costs with little public purpose’.57 The Dublin criteria, apart potentially from the relatively rarely-applied provisions requiring family members to be brought together,58 are not designed 54 55 56 57 58

ecre, Dublin ii Regulation – Lives on Hold (n 50) 69. Ibid 67. Ibid 72. Guild, Costello, Garlick, Moreno-Lax and Mouzourakis, ‘New Approaches’ (n 20) 15. European Commission, Dublin Evaluation, com(2007)299 (n 16); U. Brandl, presentation in a panel discussion at an Odysseus Academic Network conference, Towards a Common European Asylum System, 8–9 April 2014.

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to  take account of asylum-seekers’ preferences. This means that coercion becomes a critical element for the Regulation’s application based on the strictly-construed responsibility criteria. Fingerprinting, detention and forced transfer have thus become a major feature of the Dublin process, used in a majority of cases by many Member States. Fingerprinting as a method of identification has become an inherent part of the asylum process, as well as of the handling of irregular migrants, under the Eurodac Regulation. Eurodac is generally assumed to have significantly enhanced the effectiveness of the Dublin system. The first and second annual reports on Eurodac emphasised – overoptimistically, in the view of some experts – that it appeared to be functioning well;59 although the ec’s 2007 evaluation of Dublin concluded that the ‘practical application of some provisions [of Eurodac] remain[ed] problematic’,60 including in relation to data protection and failure to delete outdated data as required by law. Experts have questioned whether Eurodac’s provisions, and their use in practice, comply with the right to private life under Article 8 echr and Article 7 of the Charter, as well as the more detailed and demanding data protection obligations of the Charter’s Article 8.61 Eurodac was originally intended solely as a tool for facilitating the application of Dublin, and in that capacity to support the determination of the Member State responsible to determine a claim. However, its purpose was fundamentally altered in 2013, when the recast Eurodac Regulation was adopted, introducing new provisions permitting access to Eurodac data by law enforcement authorities.62 With these amendments, the eu legislature rejected efforts by data protection authorities,63 unhcr and asylum advocates, to confine its purpose in order to prevent the risk of misuse or disclosure of data in ways that could put an asylum-seeker or his or her family at risk; or stigmatisation of asylum-seekers who will be statistically more likely  to be investigated for alleged criminal offences. There would seem to be a significant 59

60 61 62 63

E. Brouwer, ‘Data Surveillance and Border Control in the eu: Balancing Efficiency and Legal Protection’ in T. Balzacq and S. Carrera (eds), Security versus Freedom? A Challenge for Europe’s Future (Ashgate 2006) 150. European Commission, Dublin Evaluation, com(2007)299 (n 16) 9. E. Brouwer, ‘Eurodac: Its Limitations and Temptations’ (2002) 4 ejml 231. Articles 1(2), 5–7, and Chapter vi, Articles 19–22, Eurodac Regulation. European Data Protection Supervisor, Opinion of the European Data Protection Supervisor on the amended 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 the Recast Dublin Regulation, 5 September 2012 .

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risk that the new rules could lead to unlawful use of data in ways that violate the principle of purpose limitation.64 Asylum-seekers’ resistance to mandatory fingerprinting has manifested itself in such extreme measures as self-mutilation, involving burning or cutting of fingertips to render identification impossible. However, some Member States have been reported to overcome this without difficulty, having ascertained that the damaged skin grows back in a relatively short period and fingerprint id can once more be recorded.65 More recently, reports of widespread refusal by asylum-seekers and irregular migrants to provide fingerprints upon arrival by sea have demonstrated that the effectiveness of Eurodac as a means to support later transfers under Dublin will be seriously undermined.66 Some have alleged that Italy, rather than pressing asylum-seekers to provide their fingerprints, is taking a passive approach in its own interest, to minimise the chance of being found responsible under Dublin.67 Detention is another important form of coercion that is used on a widespread basis to enforce Dublin. Research from 2011 has demonstrated that while some Member States use detention systematically prior to transfer (in France and the Netherlands), others do not detain asylum-seekers subject to Dublin (Spain), while some States use it in selected cases (for instance, approx. 50% of cases in Germany).68 Survey data gathered by the Jesuit Refugee Service (jrs) found that 40% of its sample of several hundred asylum-seekers interviewed had been subject to detention while in the Dublin process. The same research found that some States applied detention to unaccompanied and separated 64

65 66

67 68

‘Purpose limitation protects data subjects by setting limits to the collection and further processing of data. […] personal data must be collected for a specified, explicit and legitimate purpose, and may not be further processed in a way incompatible with those purposes. […] A data controller can therefore not legitimise incompatible data processing by simply relying on a new legal ground’: Article 29 Working Party on the Protection of Individuals with respect to the Processing of Personal Data, Working Paper No. 2013 on Purpose Limitation, 4 April 2013 . Anecdotal evidence given to the author, 2009. Asylum Information Database, Country Report – Italy, Second Update, April 2014 ; unhcr, unhcr Recommendations on Important Aspects of Refugee Protection in Italy, July 2013 ; Guild, Costello, Garlick, Moreno-Lax and Mouzourakis, ‘New Approaches’ (n 20). Statement of Bavarian Interior Minister to German media, August 2014. ecre, Dublin ii Regulation – Lives on Hold (n 50) 82; Jesuit Refugee Service (jrs), Protection Interrupted: The Dublin Regulation’s Impact on Asylum Seekers’ Protection (The diasp Project), June 2013, 23ff.

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children subject to Dublin, while several others refrained from doing so as a matter of policy.69 Costello has noted that coercion, in the form of detention, undermines asylum-seekers’ inclination to cooperate with the system, which can result in disaffection, absconding and weakening of the integrity of the asylum system.70 At a broader level, the negative impacts of detention upon asylum-seekers in all cases can be severe, as widely documented in literature worldwide.71 Amend­ ments in the recast Regulation aim to limit the use of detention in Dublin, and more rigorous detention-related safeguards, including judicial review, exhaustive legal grounds for detention and minimum conditions, which are set out in the recast Reception Conditions Directive, should in principle reduce the use of and harmful impact of detention. Its coercive effect will nonetheless continue to be felt by many people who will ultimately be found to be in need of international protection. The fact that asylum-seekers continue to defy the Dublin process, and move to other States to submit new applications, despite awareness of the possibility of return and other negative consequences, highlights the ineffectiveness of its coercive elements. A less coercive application of Dublin – in which the wishes and agency of the asylum-seeker were respected – could provide a more effective and rights-compliant framework for allocating responsibility.72 As jrs observes, personal choice is a matter of human dignity, which should be protected under Chapter 1 of the eu Charter. It is strongly arguable that this would serve as a more principled, as well as effective, basic premise for Dublin’s application. 69 70 71

72

ecre, Dublin ii Regulation – Lives on Hold (n 50) 82. C. Costello and E. Kaytaz, Building Empirical Research into Alternatives to Detention: Perceptions of Asylum-seekers and Refugees in Toronto and Geneva (2013) ppla.2013/0215-16. See, for example, International Detention Coalition, Captured Childhood, March 2012; K. Robjant, R. Hassan and C. Katona, ‘The Mental Health Implications of Detaining Asylumseekers: A Systematic Review’ (2009) British Journal of Psychiatry 306; L. Newman, Z. Steel, ‘Child Asylum-seekers: The Psychological and Development Impact of Immigration Detention’ (2008) 17(3) Child adolescent psychiatric and clinical review of North America 665; M. Crock (ed), Protection or Punishment? The Detention of Asylum-seekers in Australia (Federation Press 2003). See Guild, Costello, Garlick, Moreno-Lax and Mouzourakis, ‘New Approaches’ (n 20); German Bar Association, awo Workers’ Welfare Association, Pro Asyl, Paritatische Welfare Association, Neue Richtervereinigung and Jesuit Refugee Service, Allocation of Refugees in the eu: For an Equitable, Solidarity-based System of Sharing Responsibility, March 2013 .

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5.3 Dividing of Families and Failing to Address Vulnerability The principle of family unity should be a key principle governing the application of Dublin, according to the Regulation’s preamble and the substantive responsibility-allocation criteria.73 Yet practice indicates that the family criteria have not consistently been interpreted, nor used in many cases where they could apply.74 It appears that family members in many cases may in fact be separated, rather than kept or brought together, through the application of Dublin. Moreover, the specific needs of people such as unaccompanied minors, which should also be respected in accordance with the Regulation and fundamental rights, are also frequently neglected, as illustrated by a number of tragic and shameful cases. The recast changes aim to improve this situation,75 but much will depend on readiness proactively to seek information on and trace family members on the part of authorities. Statistics demonstrate that the family criteria, at the top of Dublin’s hierarchical list, both for unaccompanied minors and other asylum-seekers, have been applied in a negligible proportion of cases in recent years. In 2010, Eurostat indicated that family criteria were invoked in 0.5% of outgoing transfer requests. That figure has remained extremely low, with only 1.8% of ‘take charge’ requests relating to family criteria in 2013.76 By contrast, almost 75% of requests concerned ‘take back’ cases involving subsequent applications, where the applicant had already been dealt with in another Member State; while over 20% of requests were for ‘taking charge’ based on prior issuance of documentation or alleged irregular entry.77 For some States, family criteria figured in an even smaller proportion of requests: in 2013, Germany, for example, relied on family reasons in only 0.2% of outgoing requests, while in Sweden, the p ­ ercentage was 0.6%, with France faring marginally better with 1.8%. Actual transfers based on family reasons

73 74 75

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Recitals 14–17, Articles 8–11, 16, 17 of the 2013 Regulation. ecre, Dublin ii Regulation – Lives on Hold (n 50) 33–39. Articles 4(2) and 4(3) on information to applicants; 6 on guarantees for unaccompanied minors; Article 16 on dependent persons and Article 17 (discretionary clauses); Article 31 on exchange of information prior to transfer and Article 32 on exchange of health data, 2013 Regulation. This percentage corresponds to 1,402 requests based on family criteria out of a total of 76,538 outgoing requests: Eurodac, Annual Activity Report, 2013. In 2012, the proportion was slightly higher, with some 8.5% (1,100 of 12,921) of take charge requests based on family reasons: Eurodac, Annual Activity Report, 2012. Eurostat Annual Report, 2012 (‘Outgoing Dublin requests by receiving country and type of request’).

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were an even smaller proportion of the caseload, totalling only 584 applicants, equalling less than 4% of total Dublin transfers.78 Serious questions can be asked about the reason for this extremely limited use of the family criteria. One explanation is that delays in finding and transmitting evidence from Dublin interviews to Dublin processing units may mean that the criteria are not applied according to the hierarchical order; and transfer decisions are thus made on the incorrect, more swiftly-identified criterion, such as illegal entry based on fingerprint results from Eurodac.79 Another reason, put forward in research by jrs, was that asylum case officers – responsible for interviewing people subject to Dublin – may not always be fully aware of the Dublin hierarchy of criteria and in particular, the importance of family connections, including the need to gather all information relevant to family members’ presence.80 It is also apparent that some Member States are particularly demanding of firm evidence proving family connections, with Ireland requiring dna tests (albeit as a ‘last resort’ in the absence of other proof), and the United Kingdom (uk) and Norway also ready to employ such testing where needed.81 Asylum-seekers may also not be informed of the possibility of being reunited with family members, which could otherwise encourage them to ­provide relevant info.82 Going beyond such omissions, unhcr has also documented cases where the application of Dublin led to separation of family members, rather than bringing them together. In at least one concrete and problematic case, Dutch authorities failed to act on information that the mother of an unaccompanied child who was to be transferred to Spain was in fact present in the Netherlands.83 In another, Polish authorities were requested by Germany to take back a wife while the Czech Republic was asked to take back her husband – when the ­family criteria could have been used process their claims together in one of the

78 79 80 81

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Eurodac, Annual Activity Report, 2013. In 2012, the figure was 382 applicants transferred on family grounds, less than 3% of the total: Eurodac, Annual Activity Report, 2012. jrs, Protection Interrupted (n 68); S. Fratzke, ‘Not Adding Up: The Fading Promise of Europe’s Dublin System’ (2015) Migration Policy Institute Report. jrs, Protection Interrupted (n 68). unhcr, The Dublin ii Regulation: A unhcr Discussion Paper, 2006, 27; ecre, Report on the Application of the Dublin ii Regulation in Europe, 1 March 2006, 159; European Commission, Dublin Evaluation, com(2007)299 (n 16) 24. According to unhcr in 2006, Dutch and Swedish information about Dublin omitted any reference to the importance of family members in other Member States: unhcr, The Dublin ii Regulation, 2006, 14. ecre, Report on the Application of the Dublin ii Regulation (n 81) 163.

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two countries.84 In another case, Belgium asked Germany to take responsibility for an Armenian family rejected in Germany, but Germany was not prepared to take back the father, on grounds that he had previously been removed to his country of origin and was therefore irregularly present. In that case, Belgium eventually agreed to assume responsibility for all in order to keep the family united.85 Dublin acknowledges that there may be relationships of dependency between people who are not within the narrow definition of ‘family’, limited to spouses and minor children under the Regulation. Prior to the 2013 recast, dependency was a purely discretionary grounds for responsibility, with the ‘humanitarian clause’ allowing Member States to elect to take responsibility for claimants on this basis.86 The recast Regulation has however strengthened this provision, with a revised formulation under which Member States should ‘normally’ bring together dependent persons, provided that the concerned relative (adult child, sibling or parent) is able to take care of the dependent applicant, or vice versa.87 Despite the qualified wording (‘normally’), a reading of this provision in light of the cjeu decision in K v Austria confirms that it should be seen as a mandatory criterion wherever dependency is shown. Another difficult area relating to vulnerability concerns people with medical needs who are subject to transfer. While in principle, all relevant information about a medical condition should be provided by the transferring State to the recipient State’s authorities, there are cases where this has not occurred, with tragic results. One case reported by unhcr involved a schizophrenic Ukrainian man with suicidal tendencies, who committed suicide 11 days after his arrival in Spain from the Netherlands. In a written answer to a Parliamentary question on the case, the Dutch minister admitted mistakes in the preparatory phase of the transfer.88 Other research has raised questions about whether authorities provide all necessary medical information, or whether there are appropriate assurances that the necessary medical facilities will be available after an applicant has been transferred.89 Provisions on the rights of and procedural safeguards for unaccompanied children in the Dublin procedure were strengthened in the 2013 recast, in response to some of these problematic aspects of state practice.90 In a positive 84 unhcr, The Dublin ii Regulation (n 81) 28. 85 Ibid. 86 Former Article 15, 2003 Regulation. 87 Article 16, 2013 Regulation. 88 unhcr, The Dublin ii Regulation (n 81) 44. 89 ecre, Dublin ii Regulation – Lives on Hold (n 50) 88ff; jrs, Protection Interrupted (n 68) 72ff. 90 See in particular Article 6 on ‘Guarantees for unaccompanied minors’, 2013 Regulation.

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change, it has been made clear that children should be reunited with family members – with the definition extended to adult siblings, previously excluded from the family definition – in all cases where possible.91 To address a gap which remained after the issue proved too sensitive to resolve in the 2013 negotiations, the Commission in June 2014 proposed a further amendment to the Dublin Regulation, clarifying that an unaccompanied child with no family in the eu should be dealt with in the Member State in which she or he is located – obviating the need for transfer back in case an earlier claim was made elsewhere, and minimising the need for further shifting around of such children before their claims are decided.92 Beyond the scope of the limited family and dependency criteria and vulnerability rules, Dublin also permits States to bring together family and other people with close ties under the discretionary clauses.93 Article 17(1) is a broad provision, allowing Member States to assume responsibility in any case, without restrictions – effectively permitting Member States to reunite friends and other people if and whenever they consider it appropriate. Article 17(2) focuses specifically on ‘relations’ beyond the nuclear family, and allows States to ask another State to take charge in such case on humanitarian grounds, in particular ‘based on family or cultural considerations’, and subject to consent. While limited data is available to assess application of the new discretionary provisions, their predecessors were applied only in a very limited proportion of cases. In 2013, the humanitarian clause was applied in only 269 cases, resulting in 204 transfers based on humanitarian reasons.94 Eurostat does not store data on the use of the ‘sovereignty’ clause, corresponding to Article 17(1) in the recast Regulation, but research has concluded that it has been applied somewhat more frequently than the ‘humanitarian’ clause, including in the past to halt transfers to Greece.95 The lack of public information about its use could

91 92

Article 8 and Article 2(g), 2013 Regulation. European Commission, Proposal for a Regulation of the European Parliament and of the Council amending Regulation (eu) No. 604/2013 as regards determining the Member State responsible for examining the application for international protection of unaccompanied minors with no family member, sibling or relative legally present in a Member State, com(2014)382, 26 June 2014. 93 Article 17, 2013 Regulation. 94 EUROSTAT, Annual Activity Report, 2013. By comparison, in 2012, 175 requests were made on humanitarian grounds (35% of which came from Greece), leading to 204 transfers: EUROSTAT, Annual Activity Report, 2012. 95 ecre, Dublin ii Regulation – Lives on Hold (n 50) 45–47; jrs, Protection Interrupted (n 68) 64–66.

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indicate an unwillingness on the part of Member States to disclose details of the cases in which they apply it, in order to avoid creating arguments based on precedent. Analysis has suggested that another reason for the infrequent use of these provisions might be the lack of clear administrative or legal guidance for their application.96 However, it might also be surmised that Member States are reluctant to use exceptions which are seen as departing from the rigid criteria on which they have agreed, insisting on the mandatory enforcement of irregular entry-related elements in particular. What emerges clearly from practice is the need for a more coherent and rights-oriented approach to the use of family and humanitarian criteria and rules protecting vulnerable people. This should be seen as essential to ensure compliance with the fundamental rights which circumscribe the application of the Regulation, and to ensure a less coercive and more legally sound implementation of Dublin. 6

European Union Solidarity Measures: Counterbalancing the Cornerstone?

In March 2012, the eu Justice and Home Affairs Council adopted conclusions on a ‘Common framework for genuine and practical solidarity towards Member States facing particular pressures on their asylum systems, including through mixed migration flows’.97 These conclusions were preceded by a Communication from the European Commission, issued in December 2011, at the end of the year in which the mss and ns and me cases were decided, and a number of other challenges to the operation and further operation of the ceas had become apparent. Political differences of view were evident in particular around the increasingly loaded language of solidarity and responsibility-­sharing. With over 50,000 people from North Africa having arrived in Italy over ten months that year, including many seeking asylum, but others coming for non-­protection related reasons and moving on to other European countries, a number of Member States evidently felt they were being visited with the consequences of irresponsibility on the part of others.98 Negotiations on proposed amendments to the first phase Directives and Regulations, including the Dublin recast, were

96 97 98

Fratzke, ‘Not Adding Up’ (n 79). 3151st Justice and Home Affairs Council Meeting, Brussels, 8 March 2012. See, for example, M. Garlick and J. van Selm, ‘From Commitment to Practice: The eu Response’ (2012) 39 fmr 20–22.

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not going well,99 and the crisis which had begun some months earlier in Syria was beginning to prompt the first outflows from that country and its neighbouring region on to several European States – in an early sign of the geopolitical and human displacement catastrophe that was to come. It was arguably an important, if not easy, moment to seek new ways forward to strengthen collaborative responses to the Unions asylum challenges that could be acceptable to all Member States. In recalling solidarity’s place as ‘one of the fundamental values’ of the eu, the Commission observed in its Communication that the asylum systems of the eu were ‘interdependent’. It maintained that dysfunction in one Member State had ‘a clear impact on all the others, including through secondary movement’.100 The Commission pointed to the ‘Union’s responsibility to assist’ Member States likely to be stretched by anticipated arrivals. At the same time, it articulated the view of some (chiefly non-external-border) Member States that ‘solidarity must be coupled with responsibility’ for fulfilling obligations in international and European law; and that ‘the need to keep one’s house in order to avoid impacts on other Member States is a key aspect of solidarity’.101 This was an implied reference to the need for Member States – including those under pressure – to make all reasonable efforts to fulfil their obligations before asking for support. This, it was argued, would help create the much-vaunted ‘mutual trust’ required to ensure further mutual assistance and to strengthen solidarity. The Communication put forward four ‘axes’ for reinforcing intra-eu solidarity on asylum: practical cooperation and technical assistance; financial solidarity; effective allocation of responsibilities and ‘improving tools for governance of the asylum system’. Measures under these heads should, as the Commission concluded, put at Member States’ disposal ‘an evolving, flexible toolbox of solidarity measures’, to be used together or separately.

99

The first of these to make progress was the Qualification Directive, which was adopted in recast form in December 2011, after two years of difficult negotiations: 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), oj L 337/9, 20 December 2011. 100 European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Enhanced intra-eu Solidarity in the field of Asylum. An eu agenda for better responsibility-sharing and more mutual trust, com(2011)835, 2 December 2011, 2. 101 Ibid.

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In its subsequent Conclusions of 2012, the Council highlighted the need to ‘examine ways in which it can be given effect’ through the proposed common framework for genuine and practical solidarity.102 According to the Council, ‘solidarity’ – undefined in the Council Conclusions, as in the Treaty itself – should not come free of conditions: ‘responsibility and mutual trust’ were the ‘pillars on which the common framework should be built’, and Member States ‘should fully abide by their commitments to respect in fact and law their eu and international obligations’, ensuring that fair and efficient asylum systems were in place at national level. The Council underlined that ‘such a well-­ functioning and robust system should enable a Member State to be fully prepared to cope with migratory fluctuations and be able to receive solidarity measures’.103 There is a clear, if unacknowledged paradox inherent in this formulation: if a Member States has a fully-functioning and robust system, well able to cope with fluctuating arrivals, it is likely not to need solidarity in the form of support from other Member States. 6.1 Early Warning Among the solidarity measures endorsed by the Council, considerable emphasis was placed on the then-proposed ‘early warning’ mechanism. Ultimately adopted as part of the recast Dublin Regulation,104 this mechanism is designed for use whenever there are ‘problems in the functioning of the asylum system in a Member State’ which might jeopardise the functioning of Dublin. In such cases, the Commission, along with easo, is required to make recommendations to the concerned Member State and invite it to draw up a ‘preventative action plan’ (pap).105 The Member State must inform the Commission and Council if it intends to prepare such a plan, in order to address the identified problems. In case the preventative action plan fails to address the problems and there emerges a ‘serious risk’ that the situation ‘escalates into a crisis’ which the pap cannot remedy, the Commission may request the Member State

102 Council of the European Union, Council Conclusions on a Common Framework for genuine and practical solidarity towards Member States facing particular pressures on their asylum systems, including through mixed migration flows, 3151st Justice and Home Affairs Council meeting, 8 March 2012. 103 Ibid para 8. 104 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, oj L 180, 29 June 2013, Article 33. 105 Ibid Article 33(1), (2).

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to prepare a crisis management action plan (cris-map), which should ensure compliance with eu obligations and fundamental rights. While the ‘early warning’ provisions refer to both elements, it is not immediately apparent whether the mechanism is conceived primarily as a solidarity measure for a State under pressure, or as a means to ensure the continued operation of Dublin and protect other Member States from the consequences of a ‘crisis’, in the form of onward movement of asylum-seekers. As a possible measure of the Council’s preoccupations, however, it is noteworthy that the provision which ultimately became the ‘early warning’ provision was originally foreseen in a different form in the Commission’s proposal of 2008, as a ‘temporary suspension’ arrangement. However, this idea was rejected by most Member States, who saw it as effectively rewarding a recalcitrant State with a respite from Dublin returns. Although it enjoyed support from some parts of the European Parliament, Council members did not see it as the solution to the challenge of reconciling Dublin with solidarity. It must be acknowledged that even if it had not met with Member States’ objections, the temporary suspension mechanism would probably have had little impact on significant protection gaps in a Member State. While it could have averted the risk of rights violations for some asylumseekers for a limited time, the three months envisaged for the suspension period would likely have been insufficient to effect substantive legal and practical asylum reforms where needed to address problems. The European Commission in late 2015 tabled a new amendment proposal for a ‘crisis relocation’ mechanism in Dublin, designed as a derogation from Dublin in cases of need.106 6.2 Practical Cooperation and easo Support The Council also named practical cooperation as a central element in the solidarity ‘toolbox’. The Commission had argued that more collaboration at a practical level among Member States would increase harmonisation, improve standards and reinforce mutual trust, serving as ‘a necessary complement to legislation’ which could ‘create confidence that all Member States perform the same tasks in a similar way with similar outcomes’.107 In this, it recalled The Hague Programme of 2004, which had first identified ‘practical cooperation’ as a priority. The Council had also previously affirmed in Stockholm that practical cooperation was needed to address ‘significant differences between national provisions and their application’, and expressed the hope that ‘the easo will be an important tool in the development and implementation of the ceas and should contribute to strengthening all forms of practical cooperation between the Member States’. 106 European Commission, Proposal for a Regulation establishing a Crisis Relocation Mechanism, com(2015)450, 9 September 2015. 107 European Commission, ‘Enhanced intra-eu solidarity’, (n 100) 3.

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There have been consistently high expectations of the easo in the [five] years since its establishment, with a mandate to facilitate practical cooperation among the Member States108 in order to ‘increase convergence and ensure ongoing quality’109 of Member States’ decision-making practice. For Member States facing ‘specific and disproportionate pressures’, the easo is tasked with supporting the ‘development of solidarity within the Union’, while ensuring that asylum and reception systems were ‘not abused’.110 As an expression of the aspirations of the Council and Parliament for the new agency, the Preamble exhorted it to become a ‘European centre for expertise on asylum’ so Member States would better be able to provide international protection ‘while dealing fairly and efficiently with those who do not qualify’.111 The Regulation makes clear that easo was invested with ‘no direct or indirect powers in relation to the taking of decisions on asylum applications’,112 jurisdiction for which remains firmly in the hands of the Member States. It also refrains from conferring on easo any explicit licence to monitor Member States’ practice in asylum decision-making. By contrast, easo was empowered to ‘organise, coordinate and promote the exchange of information’ between Member States and the Commission on the implementation of the asylum acquis’,113 and in particular, to gather information on the processing of applications and ‘national and legal developments’ in the asylum field. As such, it provides the basis for data-gathering that should allow the identification of anomalies, gaps and problems in national practice that may require remedial action. This would also serve as an important foundation for the early warning system114 which was subsequently introduced into Dublin. In an important test of its added value shortly after its creation, the easo in February 2011 was asked by the Greek government for assistance to its efforts to establish a new Asylum Service, First Reception Service and Appeal Authority, and deal with large-scale asylum claim backlogs. easo came into the picture on Greece after the European Commission had already provided emergency funding from the European Refugee Fund (erf), and unhcr had deployed Greek-speaking personnel to work within the new institutions, and was ­providing operational 108 Regulation (eu) No. 439/2010 of the European Parliament and of the Council of 19 May 2010 establishing a European Asylum Support Office (hereafter ‘easo Regulation’), oj 2010 L 132/11, 29 May 2010, Article 1. 109 Ibid Recital 5. 110 Ibid Recital 7. 111 Ibid Recital 13. 112 Ibid Recital 14. 113 Ibid Article 11. 114 See above, Section 6.1.

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s­upport to case-flow management, responses to the needs of unaccompanied minors, and addressing other gaps. ngos had also moved into provision of medical services, legal advice and interpretation. In Greece, easo used for the first time the provisions in its Regulation for the establishment of Asylum Support Teams, drawn from a ‘pool’ of officials with specialised expertise on different aspects of asylum made available by the Member States.115 The agency coordinated the deployment of 70 experts from 14 Member States over 2011–12, organised into 52 Asylum Support Teams. After Greece requested ongoing support in 2013, easo committed to continue until end of 2014 with deployments aiming to provide, among other things, training on identifying the nationality of asylum-seekers; applying for and using eu funds for projects; collection and analysis of statistical data, and development of coi resources. Although Asylum Support Teams and the Asylum Intervention Pool – which includes some several hundred experts from different Member States – have enabled easo to deploy potentially useful human resources to assist Greece and other Member States, questions about the effectiveness of their operation have been raised. Major challenges have included the difficulty in securing the services of enough appropriately-qualified experts to provide support for the length of time needed to fill gaps and build up capacity in the concerned Member State. By definition, highly-qualified and well-performing asylum experts are in demand in their own countries, and making them available for extended periods to assist other national asylum services is costly to the contributing Member States. This dilemma was clearly illustrated in discussions on the work of the Asylum Support Teams in 2012, when easo called on Member States to provide more experts for longer periods of time; in response to which Member States announced their preference to offer the services of fewer officials for shorter intervals. Expectations of the impact of Asylum Support Teams have been high, and may have been based on unrealistic assumptions about the readiness and ability of contributing Member States to offer large volumes of personnel and resources for extended periods of time to build up the capacity of other States. A contrast can be made with Member States’ cooperation on the high-priority field of external border management, including through the Rapid Border Intervention (rabit) Teams created to provide support in Frontex-coordinated border operations.116 It appears that Member States are ready and able to d­ edicate more 115 Article 15 of Regulation (eu) No. 439/2010. 116 Council of the European Union, Regulation (ec) No. 863/2007 of the European Parliament and of the Council of 11 July 2007 establishing a mechanism for the creation of Rapid

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resources to joint border operations, which may be perceived as higher priority or of more direct national interest, than asylum support missions. In the asylum sphere, the need for qualified personnel at national level remains high and rising in most Member States; and except for occasional periods in which numbers may drop in some, the human resources that could be spared from eu asylum systems, particularly staff with significant experience, appears to be limited. Other challenges complicating the work of Asylum Support Teams have included practical issues, such as the need for interpreters – and how to pay costs associated with them – to ensure effective communication between visiting experts and officials in the host Member States. Moreover, the time and staff resources required to brief Asylum Support Team members, for what could be relatively brief visits, is said to be demanding on host State officials who should rather have been benefiting from the visitors’ support. The question could be asked whether unhcr’s contrasting approach to providing additional capacity to Member States – in hiring and furnishing the services of local experts and ngo partners, whose representatives speak the local language and are familiar with the context of the host country – has been a more impactful way to deliver support at key points in the aftermath of the Greek and Bulgarian asylum crises. easo has sought to work through a number of the challenges to the work of Asylum Support Teams, including dedicating staff to meeting the logistical, supervisory and support needs of the deployed personnel. But the complexity involved in designing, mobilizing and delivering support through support operations in the first place evidently cannot be underestimated. Bulgaria provides a further example of some of the challenges and limits associated with easo support. The easo support plan for the country which was drawn up in late 2013 included a mapping of the asylum process, suggestions for ‘step-by-step’ solutions to capacity problems in asylum claim registration, operation of the asylum procedure and reception, including for families and people with specific needs. A manual on registration was developed, and advisory support was provided on reception arrangements, use of ‘Country of Origin Information’ (coi) and training for new staff. Some of easo’s training modules for asylum officials were translated into Bulgarian.117 However, reactions from civil society in Bulgaria118 were less than enthusiastic about the extent of concrete benefits derived from easo’s input, at least in Border Intervention Teams and amending Council Regulation (ec) No. 2007/2004 as regards that mechanism and regulating the tasks and powers of guest Officers, oj L 199/30, 31 July 2007. 117 easo, Annual Report on the Situation of Asylum in the eu in 2013, July 2014, 58. 118 Bulgarian Helsinki Committee, Bulgarian Government Chose Not to React to the Possi­ ble  Arrival of Syrian Refugees, April 2014 . See also Human Rights Watch, Containment Plan: Bulgaria’s Pushbacks and Detention of Syrian and Other Asylum-seekers and Migrants, April 2014, ; and Asylum Information Database, Country Report: Bulgaria (first report and updates, 2013–2014). 119 easo, easo Operating Plan for Bulgaria: Stocktaking Report on the Asylum Situation in Bulgaria, February 2014, 3. 120 For 2014, the funding allocations among Member States will be based on 2011, 2012 and 2013 erf apportionments, which reflected the asylum-seeker numbers in each from the preceding year. 121 The recipients with the highest numbers in 2014 were Germany (with 202,700 applicants, 32% of the eu’s total of 625,000), Sweden (13% of the Union’s figure), Italy (10%), France

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numbers of asylum seekers by comparison with the top five receiving States may nevertheless have a significant for support to address gaps in their asylum systems which are exposed when numbers rise, albeit only by a few thousand. Bulgaria’s experience in 2013, with a five-fold increase in annual asylum-seeker numbers over just a few months, demonstrated this challenge in particularly stark terms. While a limited amount of emergency funding may be made available to help in such situations (€36 million in total for asylum- and migrationrelated ‘emergencies’ eu-wide in 2013, of which €12 went to Italy alone; and only €25 million for 2014), this can barely stretch to cover the immediate needs of asylum-seekers and refugees, and cannot be sufficient to build up systemic capacity in the longer term. Limits on the amounts and flexibility of the eu funding system thus raise questions of whether financial solidarity is able contribute effectively enough to address imbalances and ensure protection responsibilities can be fulfilled eu-wide. 6.4 Intra-European Union Relocation A further intensively-scrutinised mechanism for sharing physical responsibility for persons in need of protection is intra-eu relocation. First undertaken as an ad hoc action to assist Malta in 2009, ‘relocation’ refers the transfer of people with refugee status or subsidiary protection from one Member State to another which provides them with a residence permit and other entitlements under the Qualification Directive. After Malta experienced exceptionally high numbers of boat arrivals in 2009, it called for support from other Member States, citing its inability to integrate all those requesting and found to be in need of protection. Twenty eu and associated countries agreed to contribute, under two eu-funded (‘EUREMA’) projects122 and bilateral actions between 2009– 2012. However, the process was not seen as an unqualified success. Difficulties were observed in the selection of protection beneficiaries for relocation, due in part to narrow selection criteria nominated by some Member States, and the limited number of candidates with the desired professional skills, language abilities or other profile elements. Some candidates were also reluctant to be relocated to countries with small or non-existent refugee and diaspora communities, or where education or job opportunities seemed limited. Transfers were preceded by very limited information in some cases, and a number of refugees later returned to Malta or moved on to other States, after finding that (10%) and Hungary (7%): Eurostat, Asylum Applicants and First Instance Decisions on Asylum Applications, 2014, No. 3/2015, 20 March 2015. 122 eurema is an abbreviation for ‘eu Relocation from Malta’.

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the conditions and entitlements awaiting them were not as promised or as expected. Moreover, the value of the exercise as a solidarity gesture could be seen to be extremely limited: In the period 2009–2013, some 647 people were relocated in total from Malta to other Member States; while in the same period, approximately 628 were transferred back to Malta under Dublin. Subsequently, Member States have not taken up the Commission’s proposal for a permanent voluntary relocation scheme. Emergency relocation was launched in late 2015 for 160,000 asylum-seekers from Greece and Italy, the outcomes of which will be crucial for deliberations on a permanent relocation scheme, as well as other alternative approaches to Dublin.123 There is not a single tool or initiative among the raft of solidarity measures identified by the eu for asylum to date that can be said to be the comprehensive solution for the pressures and imbalances in the needs and numbers of asylum-seekers and refugees across the eu. In addition to practical obstacles to their implementation, and the perpetual challenge of ensuring swift responses to urgent human need, there would appear to be underlying political challenges that hamper their effective implementation. In one vision of solidarity, those experiencing ‘particular pressure’, irrespective of its cause, should receive support.124 According to another view, solidarity should be preceded by a readiness to accept and fulfil one’s responsibilities, and conduct deserving of mutual trust in the State’s ability to meet its obligations. Solidarity, from this latter perspective, should not be something that incentivises or rewards failure or neglect in the development and maintenance of a national asylum system, let alone human rights violations. At the same time, if some States are so far from being able to meet the eu standards unaided that they are likely to be in regular and serious default without support, it would seem to be in the collective interest for them to receive support. Solidarity actions, including some of those described above, will thus need to be implemented in future in a spirit of compromise, and with acknowledgement of the shared interest of all Member States in ensuring that asylum rights and acceptable standards of protection are available across the entire eu.

123 See European Commission, Proposal for a Council Decision establishing provisional measures in the area of international protection for the benefit of Italy and Greece, com(2015)286, 27 May 2015; European Commission, Proposal for a Council Decision establishing provisional measures in the area of international protection for the benefit of Italy, Greece and Hungary, com(2015)451, 9 September 2015. 124 Cyprus, Greece, Italy and Malta, Quattro Paper (n 14).

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7 Conclusions Solidarity is not reflected as an objective nor an outcome of the Dublin system, although the pressures felt by particular Dublin States loom large in debates around its operation. The question of whether Dublin exacerbates existing pressures on some Member States is disputed. However, the system does consume significant resources and political energy, relative to the numbers of people who are subject to its provisions,125 without ensuring a swift allocation of responsibility for determining asylum claims in all cases. At the very least, evidence from recent years indicates that it is failing to address its explicit goals and the many challenges flowing from its implementation in an effective manner. It is not apparent that it provides States with a reliable and swift responsibility-allocation system, or asylum-seekers with timely access to a fair assessment of their claims in line with their interests and rights. The overwhelming focus on attributing responsibility through Dublin, as part of the ceas debate, arguably distracts attention and resources from the key challenge of ensuring that national systems function efficiently and fairly. More effective, high-quality national systems would alleviate also many of the problems presently associated with Dublin, by reducing a significant compulsion for many asylum-seekers to move onward within Europe. There will be opportunities to address some of these difficulties, including in the proposed evaluation of the existing Dublin Regulation which must be completed and submitted to the Council and Parliament, with proposed amendments, in 2016. In the meantime, positive and protection-oriented interpretations, as well as an active role played by national courts and legal practitioners, could mitigate some of the Dublin system’s weaknesses, including undue hardship and lack of observance of the legal rights of individuals. Addressing the ongoing concerns around Dublin will be a crucial challenge for a Common European Asylum System which aims to respect fundamental rights, in a spirit of solidarity and responsibility-sharing, at least until the point at which all national systems are compliant with the acquis and fundamental rights.

125 In 2013, easo reported that approximately 3% of the asylum-seekers seeking protection in the eu were subject to the Dublin Regulation: easo, Annual Report 2013 (n 117).

PART 3 The Qualification Directive

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chapter 8

Piecemeal Engineering: The Recast of the Rules on Qualification for International Protection Hemme Battjes* 1 Introduction This contribution addresses the rules on qualification for international protection in the recast of the Asylum Qualification Directive.1 Its purpose is threefold.2 First, it offers an analysis in how far these novelties have improved the instrument. Second, it sorts out the opportunities for improvement that were missed in the recast. Third, it discusses all cases decided by the Court of Justice on qualification for international protection. The notions of improvement and missed opportunities may seem intuitively clear, but on closer inspection they beg some questions of analysis and delimitation. Below I will first address those issues in some detail, and then set out the order of discussion. 1.1 Aims of the Directive How are improvements and missed opportunities (or undue absence of amendment) to be defined and measured? As a standard I take the three main aims pursued by the instrument. First, further harmonisation. The Treaty on the Functioning of the European Union (tfeu) imposes the obligation on the legislator to adopt measures comprising ‘a uniform status of asylum for nationals of third countries, valid throughout the Union’ and ‘a uniform status of subsidiary protection for nationals of third countries who, without obtaining * Professor of European Asylum Law, vu University Amsterdam. 1 Directive 2011/95/EU of the European Parliament and 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), oj L 337/9, 20 December 2011. This instrument, below referred to as the 2011 Recast Qualification Directive, replaced 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, oj L 304/12, 30 September 2004. 2 The organizers of the Odysseus Conference of 8 April 2014 stated these purposes or research questions, where I presented a summary of most of the findings addressed below.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004308664_009

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European asylum, are in need of international protection’.3 Thus, the Treaty introduces the concept of ‘international protection’, comprising ‘asylum’ and ‘subsidiary protection’, and requires ‘uniformity’ for both statuses. However, the 2011 Recast Qualification Directive and the documents from its legislative history are ambiguous as regards the level of harmonisation aimed at. The Proposal for the 2011 Recast Qualification Directive speaks about ‘higher protection standards’ and ‘further harmonisation of protection standards’;4 it did not define a particular level of harmonisation. The Preamble of the 2011 Recast Qualification Directive as finally adopted speaks of ‘a higher level of approximation’ of rules on recognition on the basis of ‘higher standards’,5 and elsewhere, of ‘common criteria’.6 The 2011 Recast Qualification Directive’s title and Article 1 distinguish between ‘standards for the qualification’, ‘for a uniform status for refugees or for persons eligible for subsidiary protection’ and ‘for the content’ of that protection. Thus, the ‘status’ should be uniform, and should be distinguished from qualification and from the content of protection. What this  status refers to is quite unclear. In sum, the 2011 Recast Qualification Directive may be said to aim at ‘a higher level of approximation’ criteria, not (yet) ‘­uniform’ standards as called for by the tfeu. Second, Article 78(1) tfeu sets the aim of ‘ensuring compliance’ with the Convention Relating to the Status of Refugees (Refugee Convention)7 ‘and other relevant treaties’. Below, I take into account only the most relevant sources: apart from the Refugee Convention, Article 3 of the European Convention on Human Rights,8 and the Convention on the Rights of the Child.9 Where relevant or 3 Article 78(2)(a) and (b) Treaty on the Functioning of the European Union (tfeu) (as amended by the 2007 Treaty of Lisbon (entry into force 1 December 2009)), oj C 326/47, 26 October 2012. The phrase ‘valid throughout the Union’ seems to refer to the content of the status and hence falls outside the scope of this paper. The term ‘European asylum’ seems to refer to ‘asylum’ in the previous provision. 4 European Commission, Proposal for a Directive of the European Parliament and of the Council on minimum standards for the qualification and status of third country nationals or stateless persons as beneficiaries of international protection and the content of the protection granted, COM(2009) 551 final, 21 October 2010, 6. 5 2011 Recast Qualification Directive Preamble recital (10). 6 2011 Recast Qualification Directive Preamble recital (12), (24) and (34). 7 Convention Relating to the Status of Refugees, 189 unts 137, 28 July 1951 (entry into force 22 April 1954). 8 Convention for the Protection of Human Rights and Fundamental Freedoms, 213 unts 222, ets No. 005, 4 November 1950 (entry into force 3 September 1953). 9 Convention on the Rights of the Child, 1577 unts 3, 20 November 1989 (entry into force 2 September 1990).

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­ ecessary, I take guidelines issued by the United Nations High Commissioner n for Refugees (unhcr) and the unhcr Handbook10 into account for interpreting the Refugee Convention. As to Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (echr), I rely on the case law of the European Court of Human Rights (without questioning it). And finally, although it is not an instrument of international law, I also address compliance with the Charter of Fundamental Rights of the European Union (the Charter or cfr).11 That seems self evident as the Charter states requirements that are quite similar to those flowing from the other instruments, and besides, international law increasingly seems to work in Union law indirectly, through the Charter. Third, the Treaty states that these measures are part of a ‘common European asylum system’.12 Thus, the measures are to form a system, which means that coherence among them is required. 1.2 Measuring Improvement and Missed Opportunities Thus, the standards for measuring improvement and missed opportunities are the level of harmonisation, compliance with international standards and coherence with other eu measures. Application of these standards to amended provisions is relatively easy: if the new provision sets stricter rules, it contributes to harmonisation. If stricter rules are in accordance with international law, they better secure compliance. And if they are in line with other Union measures, they secure coherence. Application of these standards to undue absence of amendments, that is deciding when the Union legislator missed an opportunity, is more difficult. Each and every issue not addressed by the 2011 Recast Qualification Directive might be labelled as a missed opportunity for further harmonisation. For if the 2011 Recast Qualification Directive does not explicitly address an issue, Member State practice may be disharmonious. But arguably, it is impossible to address in a Directive exhaustively all issues that might arise when applying the rules for qualification for international protection. For example, few could have foreseen in 2004 that secrecy about one’s sexual identity would become a major issue (a question addressed by the European Court of Justice in the case 10

11 12

un High Commissioner for Refugees (unhcr), Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, HCR/1P/4/ENG/REV.1, December 2011, 3. Charter of Fundamental Rights of the European Union, oj C 364/1, 18 December 2000 (entry into force 1 December 2009). Article 78(2), first clause tfeu.

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X, Y and Z, see below Part 4.5.2). Furthermore, an attempt to regulate application exhaustively is, arguably, undesirable as it might hamper a dynamic interpretation of the definitions of refugee and person eligible for subsidiary protection – and hence obstruct observance of international law, another aim  pursued. Finally, the 2011 Recast Qualification Directive merely aims at ‘a higher level of approximation’, not at uniform criteria. Persistence of a certain degree of disharmony has thus been foreseen. For these reasons, I will label absence of further harmonisation as a missed opportunity for further harmonisation only when the 2011 Recast Qualification Directive explicitly allows for divergent measures in the member states. For similar reasons, an issue is a missed opportunity as regards coherence of the Common European Asylum System only when the Directive explicitly diverges from the text of other measures. Implied Authorization of Legislation at Variance with International Law So provisions that may be read as implicitly allowing for disharmony or lack of coherence (because they do not render impossible that disharmony or incoherence) are not treated as missed opportunities in this contribution. As to missed opportunities as regards compliance with international law, it seems a different standard should apply. In ep v Council, the Court of Justice ruled that provisions of a Directive that ‘impliedly authorize’ national legislation at odds with international law is invalid.13 However, it seems that in practice interpretation may rule out the possibility of such ‘implied authorization’ as further analysis of the judgment reveals. ep v Council concerned the question whether the Family Reunification Directive violated Article 8 echr, as the European Parliament had stated (that Directive was adopted by the Council – the European Parliament had had only an advisory role). The Council had argued that the action against it was inadmissible, as the Directive could not possibly infringe international law. For the instrument left Member States a certain margin of appreciation, and the use of this margin would make it possible for Member States to comply with Article 8 echr. Conversely, any violation of international law would result from a national act (or omission), not the Directive, the Council reasoned. The Court of Justice however stated that ‘a provision of a Community act could, in itself, not respect fundamental rights if it required, or expressly or impliedly authorized, Member States to adopt or retain national legislation not respecting

1.3

13

Case C-540/03 European Parliament v Council of the European Union [2006] ecr I-5769, para 23.

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those rights’.14 Thus, a Directive provision ‘impliedly authorizing’ Member State rules that do not respect international law would itself be at odds with international law. But implicit authorization seems impossible, as the Court of Justice further ruled that while the Directive leaves the Member States a margin of appreciation, it is sufficiently wide to enable them to apply the Directive’s rules in a manner consistent with the requirements flowing from the protection of fundamental rights […]. It should be remembered that, in accordance with settled case-law, the requirements flowing from the protection of general principles recognized in the Community legal order, which include fundamental rights, are also binding on Member States when they implement Community rules, and that consequently they are bound, as far as possible, to apply the rules in accordance with those requirements. Implementation of the Directive is subject to review by the national courts since, as provided in Article 18 thereof, ‘the Member States shall ensure that the sponsor and/or the members of his/her family have the right to mount a legal challenge where an application for family reunification is rejected or a residence permit is either not renewed or is withdrawn or removal is ordered’. If those courts encounter difficulties relating to the interpretation or validity of the Directive, it is incumbent upon them to refer a question to the Court for a preliminary ruling in the circumstances set out in Articles 68 ec and 234 ec.15 Put otherwise: where a Directive leaves a margin, and hence seems to make possible national acts at variance with international law, Union law requires Member States to use this margin consistently with international law requirements; judiciary supervision and the possibility to ask for a preliminary ruling serve to secure this consistency. What does follow from all this for the question whether the 2011 Recast Qualification Directive complies with international law? A Directive provision requiring or expressly authorizing national law at variance with international law is itself at variance with international law, hence for present purposes a missed opportunity. A provision leaving a margin to the Member States and hence (seemingly) making possible national law at variance with international law does not infringe international law, as Union law requires conformity with 14 Ibid 15 Case C-540/03 European Parliament v Council of the European Union [2006] ecr I-5769, paras 103–106.

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international law. Hence, such a provision is not a missed opportunity. But this conformity with international law is to be secured by the judiciary and ultimately by the possibilities to refer questions for preliminary ruling to the Court of Justice. That is not possible if a matter falls outside the scope of the Directive. Therefore, I will also address the question which issues within the scope of international refugee law fall outside the scope of the Directive (and hence may be said to be missed opportunities to secure compliance with international law). Finally, according to unhcr, the Court of Justice interpreted in a number of cases the 2011 Recast Qualification Directive (or the Proposal for it) at variance with international law. Such rules hence must be regarded as provisions that either explicitly require or explicitly allow for national practice at variance with international law. 1.4 Order of Discussion To sum up, this contribution analyses how far the 2011 Recast Qualification Directive brought improvement and missed opportunities to improve as compared to the 2004 Directive. Improvement means bringing more harmonisation, more compliance with international law and more coherence with other Union measures on asylum. Absence of law in the 2011 Recast Qualification Directive (by leaving a provision unaltered or by not filling a gap in the 2004 Directive) is a missed opportunity for further harmonisation, more coherence or securing compliance with international law when the Directive (as interpreted by the Court of Justice) explicitly allows for divergent measures in the Member States, explicitly diverges from the text of other measures or explicitly requires or allows for legislation at odds with international law. Furthermore, an opportunity for securing compliance with international law has been missed if an issue within the scope of international law is outside the Directive’s scope. In the analysis of the new, amended and unaltered provisions, I take into account how the Court of Justice has interpreted the provision in its predecessor, the Asylum Qualification Directive from 2004.16 Interpretation of new provisions is performed according to the rules set by the Court of Justice – reading the text in its context and in accordance with the Charter and relevant international law, and occasionally referring to the legislative history.17 Besides, the legislative history is rendered in order to find out why the novelty was proposed 16

17

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, oj L 304/12, 30 September 2004 (2004 Qualification Directive). See for an extended appraisal of interpretation of Union law H. Battjes, European Asylum Law and its Relation to International Law (Martinus Nijhoff 2006).

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(Part 2). Then I discuss the provisions that were amended (Part 3). This discussion consists of an analysis of the meaning of the new provisions, a comparison with its predecessor, and an appraisal in how the change secured b­ etter compliance with international law and the Charter and brought more uniformity. Missed opportunities as regards these provisions are also addressed here. In this discussion I address only the provisions on qualification (Articles 1–19). Preamble recitals are discussed where necessary or relevant for those articles. The provisions on the content of the status (Article 20 and further) are discussed in another contribution in this volume. Missed opportunities for improvement are taken into account in the discussion of amended provisions. Subsequently, missed opportunities in the unaltered provisions are discussed (Part 4). This discussion includes readings of provisions by the Court of Justice which according to unhcr are not fully compatible with international law – if that were true, those provisions should have been amended and are hence missed opportunities for improvement. The discussion also addresses uncertainties as regards the scope of the Directive as compared to international law. Finally, I make some concluding remarks (Part 5). 2

From Policy Plan to Recast

The 2004 Directive on qualification for international protection was intended, in accordance with its basis in the Treaty on European Community, to provide for ‘minimum standards’.18 It introduced a subsidiary protection status, and did secure harmonisation on a number of important issues, such as the question of persecution or harm by third parties,19 which had to be transposed by October 2006. The level of harmonisation reached amounted according to the Commission in its Policy plan on asylum of 2008 to ‘minimum alignment’; ­recognition of protection needs of applicants from the same country of origin still varied ‘significantly’ from Member State to Member State, and this was due ‘to some extent’ to the provisions of the Directive. Amendment was hence required. Besides, ‘practical cooperation’ was needed for which aim the European Asylum Support Office (easo) would be created.20

18 19 20

See Article 1 of Directive 2004/83 and Article 63(1)(a) Treaty establishing the European Economic Community (eec), 214 unts 3, 25 March 1957 (entry into force 1 January 1958). See for a comprehensive analysis and appraisal of the instrument: Battjes 2006 (n 17), Chapters 5 and 9. European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions

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On which issues was further legislation needed? Urged by the European Council, the Commission issued already in 2007, hence only a few months after the expiry of the deadline for transposition and at a moment when a considerable number of Member States had not yet transposed the instrument, a Green Paper asking stakeholders where further legislation was required.21 In its Policy Plan from 2008, the Commission itself suggested amendment of the requirements for protection by third parties (Article 7, see Part 3.3 below), internal protection (Article 8, see Part 3.4 below) and the rules on subsidiary protection (see Part 4). In the Proposal for the recast issued in 2009,22 referring to consultation of interested parties, it added the definition of family members (Article 2, see Part 3.2) and of the particular social group as well as a number of other issues. The Commission’s proposal was adopted in 2011 with only minor changes as far as qualification is concerned. The few cases where the Commission’s proposal was not followed will be mentioned below. 3

The Changes Introduced by the 2011 Recast Qualification Directive

3.1 International Protection The set-up of qualification for international protection in the 2011 Recast Qualification Directive has remained the same. As before, the standards in the 2011 Recast Qualification Directive are minimum norms, which means that member states are free to deviate from the measure to the benefit of the applicant if that is compatible with the Directive.23 And as before, the instruments defines two categories of persons eligible for protection: a refugee definition (unchanged),24 based on Article 1 of the Refugee Convention, and a definition of 17 June 2008 – Policy Plan on Asylum: An Integrated Approach to Protection across the eu, COM(2008)360, 17 June 2008, 5–6. 21 European Commission, Green Paper on the Future Common European Asylum System, COM(2007) 301, 6 June 2007. 22 See n 4. 23 For cjeu case-law on Article 3 of the 2011 Recast Qualification Directive in general and the requirement of compatibility in particular, Part 4.4.2 below. 24 Article 2(d) 2011 Recast Qualification Directive: ‘”refugee” means a third-country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it, and to whom Article 12 does not apply’.

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of persons eligible for subsidiary protection (unchanged),25 applicable only if those persons did not qualify for refugee status. unhcr (amongst others) had pleaded for the introduction of a single status encompassing both refugees and subsidiary protection beneficiaries,26 but referring to unwillingness of the member states the Commission had not followed that suggestion.27 And arguably, it could not have done otherwise as the tfeu itself requires a separate subsidiary protection status.28 The provisions on assessment of facts and circumstances (Article 4), protection needs arising sur place (Article 5(1)), actors of harm, and actors of protection (Articles 6 and 7) and internal protection (Article 8) still apply to both statuses; and those on refusal, cessation and exclusion (Articles 11, 12, 14, 16, 17 and 19) still show slight differences. Thus, the introduction of the new category of ‘beneficiary of international protection’ does not introduce a new concept, but rather a phrase to catch beneficiaries of both statuses.29 Likewise, the newly introduced definition of ‘applicant’ has no material consequences for the rules on qualification.30 The latter definition is identical to that of applicant in the other Common European Asylum Status measures and hence increases its coherence.31 25

26 27 28

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Article 2(f) 2011 Recast Qualification Directive: ‘”person eligible for subsidiary protection” means a third – country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) does not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country’. unhcr, Asylum in the European Union. A Study of the Implementation of the Qualification Directive, November 2007. Proposal (n 4), 5. Article 78(2)(b) tfeu defines subsidiary protection as a status ‘for nationals of third countries who, without obtaining European asylum, are in need of international protection’, which implies that eligibility for this status takes place after assessment of refugee status. Article 2(b) 2011 Recast Qualification Directive: ‘beneficiary of international protection’ means a person who has been granted refugee status or subsidiary protection status as defined in points (e) and (g)’. Article 2(i) 2011 Recast Qualification Directive: ‘applicant’ means a third-country national or a stateless person who has made an application for international protection in respect of which a final decision has not yet been taken’. The 2004 Directive did not contain a definition of ‘applicant’. Articles 2(b) 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

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3.2 The Definition of Family Members and Family Member Status The Directive explicitly defines two statuses: refugee status and subsidiary protection status. Somewhat implicitly, it defines a third status, for family members of persons to whom one of the mentioned statuses was issued. Certain family members are entitled to the benefits for international protection beneficiaries, including a residence permit. The rules for qualification follow from the definition of family member in Article 2 read together with Article 23(2). Like the 2004 Directive, the 2011 Recast Qualification Directive defines in Article 2(j) as family member the spouse or unmarried partner if unmarried couples are treated comparable to married couples,32 and the children of such a couple or of the international protection beneficiary (in both instruments, regardless of whether they were born in or out of wedlock or adopted as defined under national law).33 In the 2011 Recast Qualification Directive, the  definition of family members has been extended to ‘the father, mother or  another adult responsible for the beneficiary of international protection

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­protection (recast), oj L180/96, 29 June 2013, 2(c) Regulation (eu) No. 604/2013 of the European Parliament and 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), oj L 180/31, 29 June 2013, 2(c) 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), L 180/60. The 2004 Directive refers to legislation and practice as regards treatment of unmarried couples in a way comparable to married couples ‘under its law relating to aliens’, the 2011 Recast ‘under its law relating to third-country nationals’. This change emphasizes the distinction between third country nationals on the one hand and Union citizens from other Member States on the other and hence reduces the possibility to interpret the Directive on this point relying on Union law on Union citizens. Article 2(j) of the 2011 Recast Qualification Directive: ‘”family members” means, in so far as the family already existed in the country of origin, the following members of the family of the beneficiary of international protection who are present in the same Member State in relation to the application for international protection: – the spouse of the beneficiary of international protection or his or her unmarried partner in a stable relationship, where the law or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to third-country nationals, – the minor children of the couples referred to in the first indent or of the beneficiary of international protection, on condition that they are unmarried and regardless of whether they were born in or out of wedlock or adopted as defined under national law, – the father, mother or another adult responsible for the beneficiary of international protection whether by law or by the practice of the Member State concerned, when that beneficiary is a minor and unmarried’.

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whether by law or by the practice of the Member State concerned, when that beneficiary is a minor and unmarried’.34 This change was intended to bring coherence with the definitions of family member in the proposals for the Dublin Regulation and the Reception Conditions Directive, which indeed include such parents of minors eligible for international protection.35 That is in line with the Family Reunification Directive, which sets up a special regime for family reunification for family members of refugees that includes ‘firstdegree relatives in the direct ascending line’.36 This change hence indeed adds to the coherence of the European asylum legislation. Furthermore, it better secures observance of the right to respect for family life as enshrined in Articles 7 cfr and 8 echr, and the rights of the child in Articles 24(3) cfr and 7(1) Convention on the Rights of the Child. But we may note in passing that there are also missed opportunities here. Under the Family Reunification Directive, the minor (adopted) children of the spouse (of the refugee) are also eligible for family reunification, a category not included in Article 2(j) of the 2011 Recast Qualification Directive. Furthermore, the 2011 Recast Qualification Directive like the 2004 Directive states a number of additional requirements on eligibility for the family member residence permit, among them that the family already existed in the country of origin, which the Family Reunification Directive does not state.37 Finally, the latter Directive explicitly states that ‘Member States may authorise family reunification of other family members […], if they are dependent on the refugee’, and that they ‘may authorise the entry and residence for the purposes of family reunification of his/her legal guardian or any other member of the family, where the refugee has no relatives in the direct ascending line or such relatives cannot be traced’ if the refugee is an unaccompanied minor’.38 A counterpart for these provisions is lacking in the 2011 Recast Qualification Directive. 34 35

Article 2(j) of the 2011 Recast Qualification Directive. Proposal (n 4) 5; Article 2(g) Dublin iii Regulation (n 31); Article 2(c) Reception Conditions Directive (n 31). The Procedures Directive (n 31) does not contain this definition. 36 Article 10(3) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification2003/86, L 251/12. 37 Article 2(j) 2011 Recast Qualification Directive; the other requirements remained unchanged: that the family members should be present in the same Member State that recognised eligibility for international protection ‘in relation to the application for international protection’ (Article 2(j) 2011 Recast Qualification Directive); that the family members do not individually qualify for international protection status, and that the issue of benefits is compatible with the personal status of the family member (Article 23(2) 2004 and 2011 Recast Qualification Directives). 38 Article 10(2) and (3)(b) Family Reunification Directive.

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There is no reasonable explanation for these differences, which have odd consequences. The family members within the latter categories who do or may fall under the scope of the Family Reunification Directive are not entitled to the dependent family member status under the 2011 Recast Qualification Directive, and hence can be required to leave the Member State in order to apply for family reunification in their country of origin. These applications then have to be assessed according to the more beneficial rules for family members of refugees than that apply to other third country nationals in the Family Reunification Directive.39 Of course, Member States may solve this by extending the definition of 2011 Recast Qualification Directive family members (invoking the right to set more favourable standards pursuant to Article 3), but  we may conclude that by maintaining these differences the 2011 Recast Qualification Directive does not increase coherence as much as it could have done, and to the same extent does not secure observance of the instruments of international law just mentioned. 3.3 Actors of Protection A person threatened with persecution or serious harm is not a refugee nor eligible for subsidiary protection, if ‘protection’ is available in the country of origin. Article 7 of the 2004 and of the 2011 Recast Qualification Directive defines which actors can provide for such protection (Article 7(1)), and sets standards for the protection offered (Article 7(2)). Article 7 of the 2004 Directive stated already that both the State and ‘parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State’ could provide protection; the recast version adds that ‘only’ these actors can do so.40 It hence clarifies that this list is exhaustive. Does it better secure compliance with international law? In so far as it clarifies that not each and any actor can offer relevant protection, one may say it does. And taking into account case law of the European Court of Human Rights accepting that other actors (such as clan militia’s) can offer protection,41 it even raises the standards above those set by Article 3 echr. 39 40

41

See Articles 9–12 Family Reunification Directive. Article 7(1) of the 2011 Recast Qualification Directive: ‘1. Protection against persecution or serious harm can only be provided by: (a) the State; or (b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State; provided they are willing and able to offer protection in accordance with paragraph 2’. Salah Sheekh v The Netherlands Appl no 1948/04 (ECtHR, 7 January 2007). In a similar vein, in Auad v Bulgaria Appl no 46390/10 (ECtHR, 11 October 2011), at para 103 the Court

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However, the Refugee Convention requires protection to come from a State.42 Whereas pseudo-States may be assumed to be able to offer such protection as well, it is doubtful whether international organizations can. In so far, the new Directive continues its invitation to neglect the Refugee Convention. We may observe in passing that the European Court of Justice confirmed that organizations could provide protection for the purposes of Article 7, without addressing the tension with the Refugee Convention.43 But this tension issue was not addressed by the referring court or the Advocate-General in the case (which concerned not protection as such but rather the cessation clause, see below, Part 3.7.3),44 and possibly the Court was unaware that the text of the Directive is contentious at this point. Arguably, the findings of the Court might change if the question of compliance with the Refugee Convention is raised in some future case. However that may be, the 2011 Recast Qualification Directive failed to correct the Court on this matter. The 2011 Recast Qualification Directive furthermore adds two requirements on those actors of protection. First, pursuant to the last clause of Article 7(1), entities can count as actor of protection ‘provided they are willing and able to offer protection in accordance with paragraph 2’. This addition, arguably, renders explicit a requirement that was already implied in the former Article 7 and in the definitions of refugee and persons eligible for subsidiary protection, which state the same requirement in almost identical words.45 Finally, the provision requires that ‘[p]rotection against persecution or serious harm must be effective and of a non-temporary nature’, a valuable clarification which according to the Commission ‘ensures coherence with Article 11(2) of the Directive, which requires, for the purposes of cessation, that the change of circumstances in the country of origin should be significant and of n­ on-temporary nature’.46 This interpretation of protection by reference to the

42 43 44

45 46

deemed Al-Fatah a source of protection, and in Izevbekhai v Ireland Appl no 43408/08 (ECtHR, 17 May 2011) at paras 80–81, a ngo. Article 1A(2) Refugee Convention: ‘protection of that country’, that is: ‘the country of his nationality’. Cf. J.C. Hathaway, The Law of Refugee Status (Toronto 1991) 104–105. Cases C-175/08, 176/08, 178/08 and 179/08 Salahadin Abdulla a. o. [2010] ecr I-1493, para 75. See the Conclusion in C-175/08 by Advocate-General Mazak, which focuses on the Directive only and seems sadly unaware of the existence of the Refugee Convention and the vast body of case law and literature on it. The issue was raised, though, in the unhcr case comment (unhcr, Statement on the ‘Ceased Circumstances’ Clause in the ec Quali­ fication Directive, 2008, 16). See Article 2(c) and 2(e) 2004/83 and 2(d) and (f) 2011/95, and cf. Article 1A(2) rc (n 42), all identical in this respect. Commission Proposal (n 4) 6; emphasis in original.

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cessation clause finds support in Salahaddin Abdulla, where the European Court of Justice in a similar manner interpreted Article 11(2) of the Directive by reference to Article 7.47 In sum, it may be said that the recast Article 7 clarifies protection and thereby adds to ensuring compliance with international law. But it also maintains the clause that international organizations can offer protection, which is not compatible with the Refugee Convention. It increases the tension between paragraph 1 and paragraph 2: no protection by international organizations can be as ‘durable’ as State protection, and that is the standard set by the Refugee Convention. This tension can be solved either by denying organizations the faculty to offer protection (and hence applying a more favourable standard as allowed for by Article 3) or by restricting the meaning of protection.48 3.4 The Internal Protection Alternative Article 8 determines under which conditions member states may decide that the applicant is not in need of international protection because an internal protection alternative is available. The provision has been changed in three respects. First, Article 8(3) of the 2004 Directive stated that the internal protection exception ‘may apply notwithstanding technical obstacles to return to the country of origin’; hence that states could deny asylum because of a protection alternative that was not accessible for the applicant. This paragraph has been deleted; instead, in paragraph 1 the requirement has been added that the applicant ‘can safely and legally travel to and gain admittance to that part of the country’.49 This requirement was meant to secure compliance with Article 3 47 48

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Cases C-175/08, 176/08, 178/08 and 179/08 Salahadin Abdulla a. o. [2010] ecr I-1493, paras 70–75. As stated above, the Court’s reading itself is spurious. For example, the Dutch Council of State ruled that ‘The wording of Article 7, paragraph 2 of the Qualification Directive gives no reason for assuming that the existence of an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm is an independent criterion for answering the question whether protection is being offered, in the sense that that question should always be answered in the negative if such an effective legal system is absent. Such a finding is also incompatible with the thought laid down in paragraph, that also others than the state can offer protection’ (Judicial Division Council of State 5 August 2008, ecli ECLI:NL:RVS:2008:BD9606, Jurisprudentie Vreemdelingenrecht 2008 no. 431; my translation). Article 8(1) of the 2011 Recast Qualification Directive: ‘1. As part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin, he or she: (a) has no well-founded fear of being persecuted or is not at real risk of suffering serious harm; or (b) has access to protection against persecution or serious harm as defined in

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echr, as the European Court of Human Rights had ruled in Salah Sheekh that ‘as a precondition for relying on an internal flight alternative certain guarantees have to be in place: the person to be expelled must be able to travel to the area concerned, gain admittance and settle there, failing which an issue under Article 3 may arise’.50 This amendment hence secures better compliance with international law. Second, the old Article 8(1) defined the alternative as a part of the country where ‘there is no well-founded fear of being persecuted or no real risk of suffering serious harm’. In the Commission’s proposal, this phrase was replaced by the condition that the applicant ‘has access to protection against persecution or serious harm as defined in Article 7 in a part of the country of origin’. Thus, it was not enough that fear or risk were absent, but required that protection was available.51 However, during Council negotiations the Dutch delegation proposed to maintain the old requirement: if a person fled because of general violence as meant in Article 15(c), it was enough that that person reached an area free of violence, and no requirements on protection were needed.52 The presidency came up with the text as adopted,53 apparently as a sort of compromise: […] Member States may determine that an applicant is not in need of international protection if in a part of the country of origin, he or she: (a) has no well-founded fear of being persecuted or is not at real risk of suffering serious harm; or (b) has access to protection against persecution or serious harm as defined in Article 7 […]. The result is that protection provided for by Article 8 has not increased. The question whether the protection in the alternative should, because of the reference to protection in the refugee and subsidiary protection definitions in Article 2, satisfy the requirements of Article 7 is as yet unclear.

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Article 7; and he or she can safely and legally travel to and gain admittance to that part of the country and can reasonably be expected to settle there’. Commission Proposal (n 4) 7, referring to Salah Sheekh (n 41) para 141. This finding has been confirmed in a number of cases, e.g. Sufi and Elmi v uk Appl nos 8319/07 and 11449/07 (ECtHR, 28 June 2011) para 266. Commission Proposal (n 4) 7: ‘The purpose and content of international protection are not limited to non-refoulement. It is necessary thus to specify that it may be withheld only where protection is available in at least part of the country of origin’. Council Doc. 15089/1/10 REV.1, 4–5. Council Doc. 15303/10.

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The third change concerns paragraph 2, which says that when determining whether or not there is a protection alternative, authorities must take both the general situation and the personal circumstances into account. On proposal of the Dutch representative in the Council the words ‘as submitted by the applicant in accordance with Article 4’ were added. Article 4 states rules on the assessment of the application. The Dutch wanted to shift the burden of proof as regards the internal protection alternative to the applicant.54 The Presidency reduced the amendment to ‘in accordance with Article 4’, which became the final text.55 Does this result in shifting the burden of proof? According to minister Leers it does, but others have pointed out that Article 4 applied anyhow.56 Fourth, the Commission had added a final clause in paragraph 2: ‘To that end [i.e. taking into account general and personal information], Member States shall ensure that precise and up-to-date information is obtained from relevant sources, such as the United Nations High Commissioner for Refugees and the European Asylum Support Office’. Although no one would object to the use of precise and objective information form relevant sources (as opposed to imprecise and subjective information from irrelevant sources), it is a bit unclear why this requirement addresses internal protection in particular (and not also, say, protection as meant in Article 7(2)) and furthermore why it is mentioned here and not in, say, Article 4 of the 2011 Recast Qualification Directive or the Procedures Directive.57 This provision hence adds to securing 54 55

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Council Doc. 15089/1/10 REV 1, 4–5. Article 8(2) of the 2011 Recast Qualification Directive: ‘2. In examining whether an applicant has a well-founded fear of being persecuted or is at real risk of suffering serious harm, or has access to protection against persecution or serious harm in a part of the country of origin in accordance with paragraph 1, Member States shall at the time of taking the decision on the application have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant in accordance with Article 4 […]’. See the report of the debate in the Second Chamber of Dutch parliament, 2011/12 Kamerstukken ii 30573 no. 93, where the reason for these demands is also being discussed: the requirements for support of government policy by Wilders’ pvv is the ‘support agreement’ (gedoogakkoord). Cf. Article 10(3) of the Asylum Procedures Directive (2013/32): ‘3. Member States shall ensure that decisions by the determining authority on applications for international protection are taken after an appropriate examination. To that end, Member States shall ensure that: […] (b) precise and up-to-date information is obtained from various sources, such as easo and unhcr and relevant international human rights organisations, as to the general situation prevailing in the countries of origin of applicants and, where necessary,

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compliance with international law, but hardly to increasing the coherence of the Common European Asylum System. 3.5 Causal Link with Convention Ground Article 9 defines the acts of persecution. The recast brings an important change as regards the nexus with the Convention grounds. This issue needs some introduction before turning to the amendment of Article 9. According to the refugee definition, a person is a refugee if he or she has well-founded fear of being persecuted ‘for reasons of’ race, ethnicity and so on. Article 9 defines acts of persecution, Article 10 of the Directive elaborates on the Convention grounds. Article 9(3) of the old 2004 Directive stated: ‘In accordance with Article 2(c), there must be a connection between the reasons mentioned in Article 10 and the acts of persecution […]’. Article 2(c) renders (with some changes that do not concern us here) the refugee definition of Article 1 of the Refugee Convention: a refugee is a person who ‘owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group’ fled the country of origin. Article 9(3) seemed to interpret the causal link (‘for reasons of’) between persecution and grounds in such a way that a person could not be a refugee, if protection was denied on a Convention ground. For example, if a shop keeper is being harassed by a competitor wishing to take over his trade and the authorities deny protection because he belongs to a religious minority, Article 9(3) suggests he is not a refugee: there would be no connection between the acts of persecution and the Convention ground as required by Article 9(3). But many jurisdictions and most commentators have since long accepted that in such a situation, the refugee definition does apply. This follows from the wording of Article 1A(2): it does not define as a refugee a person who has ‘fear of persecution for reasons of’ a Convention ground and lacks protection, but who has ‘fear of being persecuted for’ the mentioned reasons.58 This passive voice renders decisive the predicament of a person who fears persecution acts and cannot invoke protection, and it is to this predicament that the Convention grounds are linked. In the example above, the shopkeeper’s fear is due not only to threats by the competitor, but also to the unwillingness of the authorities to provide protection; hence, there is a causal link with the Convention grounds. A second reason for assuming that absence of protection for reasons of a Convention ground is relevant for refugee status is the common approach to

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in countries through which they have transited, and that such information is made available to the personnel responsible for examining applications and taking decisions’. Battjes 2006 (n 17), with references to other authors.

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interpret the definition by references to human rights.59 The very notion of human rights includes State protection of human rights. The new Article 9(3) corrects the 2004 Directive provision as it states now ‘In accordance with [the refugee definition], there must be a connection between the reasons mentioned in Article 10 and the acts of persecution as qualified in paragraph 1 of this Article or the absence of protection against such acts’ [emphasis added]. This change eliminates deviance from the Refugee Convention and hence certainly secures compliance with it. 3.6 Gender Related Aspects of the Particular Social Group Article 10(1)(d) of the 2011 Recast Qualification Directive states the same two limb test for belonging to a particular social group as did the 2004 Directive (see below for a discussion of this test).60 The elaboration of this test in the same provision for gender related aspects however was amended. The 2004 Directive stated that ‘gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this Article’. The Commission observed in its Proposal for the recast that Gender as such is normally not sufficient as a criterion for the definition of a particular social group; it is generally used in combination with other factors, such as class, marital status, ethnic or clan affiliation. However, women may form a particular social group in some societies, as evidenced by discrimination in their fundamental rights.61 Accordingly, it proposed the text as finally adopted: ‘Gender related aspects, including gender identity, shall be given due consideration for the purposes of determining membership of a particular social group or identifying a characteristic of such a group’. This amendment states in more demanding terms that gender related aspects should be taken into account, and indeed does not exclude the possibility that gender is sufficient for defining a particular social group. Thus, it adds to securing conformity with the Refugee Convention. 59 60

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Hathaway 1991 (n 42), passim. Article 10(1)(d) of the 2011 Recast Qualification Directive: ‘a group shall be considered to form a particular social group where in particular: – members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and – that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society’. Commission Proposal (n 4) 8.

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Those beneficial effects cannot however conceal that the Commission missed an opportunity. For belonging to a particular social group, Article 10(1) (d) sets two cumulative requirements: the persons must have a characteristic they cannot change or cannot be asked to change, and the group must be recognizable in the society in the country of origin. These requirements go back to two separate tests.62 The ‘protected characteristic’ or immutability’ approach rests on an ejusdem generis reading of the Convention grounds. As the other grounds (race, religion and so on) all define a characteristic that cannot or should not be expected to be changed, the same should apply to the particular social group. The ‘social perception’ test rests on a more textual reading of ‘particular social group’. Under the latter test, persons who do not share a protected characteristic may be members of a particular social group, e.g. shop owners. Before the 2004 Directive, jurisdictions applied either the first or the second test. And unhcr clearly presented them as alternative tests: A particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights.63 But the 2004 Directive requires that the test be applied cumulatively. Based on a reading of the Refugee Convention, the uk Supreme Court has ruled that if the first limb of the test is met, the social perception requirement need not be satisfied in order to be member of a particular social group.64 Such 62

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J.C. Hathaway and M. Foster, ‘Membership of a Particular Social Group: Discussion Paper No. 4 Advanced Refugee Law Workshop International Association of Refugee Law Judges Auckland, New Zealand, October 2002’ (2003) 15(3) ijrl 477–491; unhcr, unhcr Com­ ments on the European Commission’s Proposal for a Directive of the European Parliament and of the Council on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Beneficiaries of International Protection and the Content of the Protection Granted (COM(2009)551, 21 October 2009), July 2010, 7–8; C. Querton, ‘The Interpretation of the Convention Ground of “Membership of a Particular Social Group” in the Context of Gender-related Claims for Asylum A critical analysis of the Tribunal’s approach in the uk’ (2012) Refugee Law Initiative Working Paper 3. unhcr Guidelines on International Protection: ‘Membership of a particular social group’, 2002, para 11. Lord Brown en Baroness Hale agreed with Lord Bingham’s reasoning that ‘Were interpreted as meaning that a social group should only be recognised as a particular social group for purposes of the Convention if it satisfies the criteria in both of sub-paragraphs

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an outcome is of course possible as Article 10(1)(d) states minimum norms that leaves member states the freedom to maintain more beneficial rules. In X, Y and Z the European Court of Justice addressed the question whether homosexuals are a particular social group as defined in Article 10(1)(d). It answered the answer in the affirmative, and stated: Article 10(1) of the Directive gives a definition of a particular social group, membership of which may give rise to a genuine fear of persecution. According to that definition, a group is regarded as a ‘particular social group’ where, inter alia, two conditions are met. First, members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it. Second, that group has a distinct identity in the relevant country because it is perceived as being different by the surrounding society.65 The Court then continues to apply both conditions. Thus, it does not question whether both tests can apply cumulatively. Neither was this issue raised by the Advocate-general. Possibly, the Court of Justice will address the issue when it concerns a group that satisfies only one of the tests. But in the meantime, X, Y and Z erroneously reinforces the cumulative reading. The Union legislator missed the opportunity to correct this by replacing the word ‘and’ by ‘or’ between both limbs of Article 10(1)(d), and thus securing better observance of the Refugee Convention. 3.7 Cessation 3.7.1 The Compelling Reasons Exception The 2011 Recast Qualification Directive introduced an exception to the (mandatory) cessation of refugee and of subsidiary protection status. According to Article 11(1)(e) and (f) and 16(1) of both the 2004 and the 2011 Recast Qualification Directive, a person shall cease to be a refugee or person eligible for subsidiary protection if the circumstances in connection with which he or she was

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(i) and (ii), then in my opinion it propounds a test more stringent than is warranted by international authority’ (i.e. by unhcr; Secretary of State for the Home Department v K; Fornah v Secretary of State for the Home Department [2006] ukhl 46, para 16. Lord Hope stated that the social perception need not be met in order to qualify as a particular social group (ibid para 46)). Cases C-199/12, C-200/12 and C-201/12 Minister voor Immigratie en Asiel v X and Y and Z v Minister voor Immigratie en Asiel (ecj, 7 November 2013) paras 44 and 45.

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recognized as a refugee or subsidiary protection beneficiary have ceased to exist.66 The wording of Article 11(1)(e) and (f) are almost identical to the first clauses of Article 1C(5) and (6) of the Refugee Convention;67 Article 16(1), on cessation of subsidiary protection status, was obviously inspired by it.68 The new Article 11(3) and 16(3) of the Recast Directive state that the mentioned obligatory cessation shall not apply to a refugee [person eligible for subsidiary protection] who is able to invoke compelling reasons arising out of previous persecution [previous serious harm] for refusing to avail himself or herself of the protection of the country of nationality or, being a stateless person, of the country of former habitual residence. Thus, although due to a change of circumstances (the fall of a regime for example) has no longer well-founded fear of being persecuted or runs no longer a real risk of serious harm, his or her international protection nevertheless does not cease because one cannot ask them to return because of compelling reasons due to previous persecution or serious harm.

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Article 11(1) of the 2004 and of the 2011 Recast Qualification Directive: ‘A third-country national or a stateless person shall cease to be a refugee if he or she: […] (e) can no longer, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, continue to refuse to avail himself or herself of the protection of the country of nationality; or (f) being a stateless person, he or she is able, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, to return to the country of former habitual residence’; Article 16(1): ‘A third-country national or a stateless person shall cease to be eligible for subsidiary protection when the circumstances which led to the granting of subsidiary protection status have ceased to exist or have changed to such a degree that protection is no longer required’. Article 1C of the refugee Convention: ‘This Convention shall cease to apply to any person falling under the terms of section A if: […] (5) He can no longer, because the circumstances in connexion with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality; […] (6) Being a person who has no nationality he is, because of the circumstances in connexion with which he has been recognised as a refugee have ceased to exist, able to return to the country of his former habitual residence […]’. Article 16(1) of the 2011 Recast Qualification Directive: ‘A third-country national or a stateless person shall cease to be eligible for subsidiary protection when the circumstances which led to the granting of subsidiary protection status have ceased to exist or have changed to such a degree that protection is no longer required’.

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3.7.2 Compelling Reasons and the Refugee Convention This exception is also based on Article 1C(5) and (6) of the Refugee Convention, which state that mandatory cessation due to change of circumstances ‘shall not apply to a refugee falling under Section A(1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality’. Article 1A(1) of the Refugee Convention applies to statutory refugees, that is refugees who were recognized pursuant to pre-war agreements. An a contrario reading suggests that the clause hence does not apply to refugees recognized as they fulfil the requirements of Article 1A(2) Refugee Convention. The Commission however explained that the exception should be ‘interpreted as reflecting a general humanitarian principle’.69 That is in line with the unhcr Handbook, which states that ‘At the time when the 1951 Convention was elaborated, [statutory refugees] formed the majority of refugees. The exception, however, reflects a more general humanitarian principle, which could also be applied to refugees other than statutory refugees’.70 If that reading is correct, the adoption of the exception in Article 11(3) of the 2011 Recast Qualification Directive secures better observance of international law. The exception may also secure more harmonisation as several Member States may have had already similar exceptions in national law, but I have no information on that. 3.7.3 Changed Circumstances The Court of Justice offered some guidance on the application of the cessation clause in Salahaddin and others.71 The case concerned a number of Iraqi’s whom refugee status had been granted in 2002 for reasons that made them fear persecution by the Baath regime of Saddam Hussain. After the overthrow of that regime, the Bundesasylamt revoked their refugee statuses. The Bundesver­ waltungsgericht (the highest court on asylum in Germany) referred a number of questions to the Court of Justice. To begin with, it asked in essence, whether Article 11(1)(e) of the Directive is to be interpreted as meaning that refugee status ceases to exist if the circumstances which justified the refugee’s fear of persecution for one of the reasons referred to in Article 2(c) of the Directive, on the basis of which refugee status was

69 70 71

Commission Proposal (n 4) 8. unhcr Handbook (n 10) para 136. Cases C-175/08, 176/08, 178/08 and 179/08 Salahadin Abdulla a. o. [2010] ecr I-1493.

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granted, no longer exist and the refugee has no other reason to fear being ‘persecuted’ within the meaning of Article 2(c) of the Directive.72 Thus, the question is whether absence of a present fear of persecution is sufficient for cessation. The answer is yes: refugee status ceases to exist when, having regard to a change of circumstances of a significant and non-temporary nature in the third country concerned, the circumstances which justified the person’s fear of persecution for one of the reasons referred to in Article 2(c) of Directive 2004/83, on the basis of which refugee status was granted, no longer exist and that person has no other reason to fear being ‘persecuted’ within the meaning of Article 2(c) of Directive 2004/83.73 The Court further added that the authorities must verify whether the requirements on protection stated in Article 7(1) (such as the operation of an effective legal system) are met. It is unclear whether this answer is in full accordance with the Refugee Convention. In a statement issued with the eye on the then pending preliminary questions, unhcr had stated that absence of risk of persecution is required but not sufficient. In particular, the availability of ‘effective protection’ should be demonstrated, which requires more than protection as meant in Article 1A(2) Refugee Convention.74 But the ruling of the Court of Justice implies that not fulfilling the requirements of Article 1A(2) is sufficient to conclude that the status ceases. In that reading, Article 1C has no meaning, which is an unreasonable interpretation. The implication of Article 1C is precisely that although the refugee may temporarily have no well-founded fear, his status only ceases when additional requirements are met – in particular, the requirements that the changes are fundamental and durable and that effective protection is in place, as stated in Article 11(2) of the 2004 and 2011 Recast Qualification Directive.75 Thus, the Court of Justice in this case may have 72 73 74

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Ibid para 55. Ibid para 76. unhcr, unhcr Public Statement in Relation to Salahadin Abdulla and Others v Bundesre­ publik Deutschland Pending Before the Court of Justice of the European Union, August 2008, C-175/08; C-176/08; C-178/08 & C-179/08, 2008, 12. Article 11(2) of the 2004 and 2011 Recast Qualification Directive: ‘In considering points (e) and (f) of paragraph 1, Member States shall have regard to whether the change of circumstances is of such a significant and non-temporary nature that the refugee’s fear of persecution can no longer be regarded as well-founded’. See ibid 7 ff.

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­contributed to harmonisation, but not to securing compliance with international law. 3.7.4 The Burden of Proof in Cessation Cases Further, the Court of Justice addressed how fear of being persecuted on other grounds than those which led to the previously granted (and now ceased) status should be assessed. This concerned, first, the standard of ‘probability’ and second, whether Article 4(4) of the Directive (past persecution leads to a rebuttable presumption of future persecution) applies.76 The Court answered that the normal ‘probability’ test applies, and that Article 4(4) of the Directive may apply when the competent authorities plan to withdraw refugee status under Article 11(1)(e) of the Directive and the person concerned, in order to demonstrate that there is still a wellfounded fear of persecution, relies on circumstances other than those as a result of which he was recognized as being a refugee.77 It added that ‘normally’ that would be the case only if the reason for persecution (e.g. Iraqi Christians fearing ill-treatment for reasons of religion) is different from the reason for the former issue of refugee status (e.g. fearing death from Hussain’s regime for reasons of political opinion).78 These answers are built on the assumption that it is the (former) refugee who should demonstrate, as any new asylum-seeker, that he has well-founded fear. The Court nowhere even mentions Article 14(2) of the Directive, which clearly states Without prejudice to the duty of the refugee in accordance with Article 4(1) to disclose all relevant facts and provide all relevant documentation at his or her disposal, the Member State which has granted refugee status shall, on an individual basis, demonstrate that the person concerned has ceased to be or has never been a refugee in accordance with paragraph 1 of this Article. 76

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Article 4(4) of the 2004 and 2011 Recast Qualification Directive: ‘The fact that an applicant has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, is a serious indication of the applicant’s well-founded fear of ­persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated’. Cases C-175/08, 176/08, 178/08 and 179/08 Salahadin Abdulla a. o. [2010] ecr I-1493 para 91. Ibid para 100.

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Thus the burden of proof rests squarely on the State, not on the refugee. According to unhcr, it follows that the ‘probability’ standard to be applied here is the ‘mirror image’ of Article 4(4): ‘In the same way as a lower standard of proof is required to recognize the person as a refugee when fear of persecution is invoked, a higher standard of proof is required to apply cessation when the person has already been recognized as refugee’.79 Again, the ruling may be beneficial for harmonisation; it is at odds with the aim of securing observance of international law obligations. 3.7.5 Cessation: Balance The 2011 Recast Qualification Directive introduces an exception to cessation on humanitarian grounds that, strictly spoken, are not required under the Refugee Convention. Those wishing a widening of the scope of protection may welcome that. But that widening of scope does not affect the, arguably, very restrictive reading of the cessation clause by the Court of Justice in Salahaddin that runs counter to object and purpose and context of Article 1C of the Refugee Convention. It is stunning how bluntly the European Court of Justice neglected the unhcr views on the matter – not just as an organization with a ‘supervisory’ task as regards the application of the Refugee Convention,80 but also as a source of knowledge and experience as regards the Refugee Convention.81 4

Missed Opportunities

In the context of amendments made to the 2004 Directive, a number of missed opportunities for improvement were signalled. In this paragraph, missed opportunities as regards unaltered provisions will be discussed. 4.1 Refugee Sur Place Article 5 was left unchanged by the recast. This provision addresses international protection needs arising sur place, that is in the host country. It mentions two situations. First, fear or risk ‘may be based on events which have 79 80 81

unhcr Statement (n 74) 18. Cf. Article 35(1) Refugee Convention. Preamble recital (15) of the 2004 Directive, recital (22) of the 2011 Recast Qualification Directive: ‘Consultations with the United Nations High Commissioner for Refugees may provide valuable guidance for Member States when determining refugee status according to Article 1 of the Geneva Convention’.

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taken place since the applicant left the country of origin’.82 The typical example would be the ambassador of a regime that is overthrown, as a result of which he has well-founded fear of being persecuted by the new regime. Second, the fear or risk may be based on activities which the applicant has engaged in since he or she left the country of origin, in particular where it is established that the activities relied upon constitute the expression and continuation of convictions or orientations held in the country of origin. The typical example here would be that of a failed asylum-seeker who converts to Christianity and then applies for asylum on the ground that converts are being persecuted in his country of origin. Article 5 states that such an activity is relevant, and that continuation of a previous orientation (e.g. discomfort with the religion in the country of origin before departure) is not required. Article 5(3) adds that [w]ithout prejudice to the Geneva Convention, Member States may determine that an applicant who files a subsequent application shall not normally be granted refugee status if the risk of persecution is based on circumstances which the applicant has created by his or her own decision since leaving the country of origin. This is a highly problematic provision. It seems to be based on the suspicion that convictions allegedly developed sur place are faked, in order to obtain by fraud refugee status. Indeed in certain cases the stated fear of persecution may be fake, and if that has been established, there is no well-founded fear. But if the third country national does demonstrate well-founded fear of being persecuted due to circumstances created by his decision after entering the host country, there is no ground whatsoever in the Refugee Convention or elsewhere to deny refugee status. Hence, this provision introduces a ground for refusal which is flagrantly at odds with the Refugee Convention and should have been deleted in the Recast.83 The same applies to Article 4(3)(d) in the 2004 and 2011 Recast Qualification Directives, which states that the assessment of the application 82 83

Article 5(1) 2011 Recast Qualification Directive. More elaborately on the matter, see H. Battjes, ‘Accommodation: “sur place” Claims and the Accommodation Requirement in Dutch Asylum Policy’, in T. Spijkerboer (ed) Fleeing Homophobia: Sexual Orientation, Gender Identity and Asylum (Routledge 2013) 82–97.

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includes taking into account [….] whether the applicant’s activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether those activities would expose the applicant to persecution or serious harm if returned to that country. This provision imposes (‘includes’, not: may include) the obligation to assess the purpose of sur place activities. Again, there is no ground whatsoever in the Refugee Convention for such an obligation. 4.2 Inexplicable Differences in the Grounds for Refusal Comparison of the grounds for refusal of refugee and subsidiary protection status reveals strange differences. Thus, the grounds for exclusion from refugee status seem in one respect wider than for exclusion from subsidiary protection status (i.e. more people can get excluded from refugee than from subsidiary protection status). Article 12(1) of both the 2004 and the 2011 Recast Qualification Directive requires exclusion from refugee status on grounds equivalent to Article 1D or 1E of the Refugee Convention.84 Article 1E excludes persons who acquired rights and obligations equivalent to the nationality of their state of residence. Similar provisions are lacking as regards subsidiary protection.85 Or should we assume that persons falling under Article 1E Refugee Convention would be excluded from subsidiary protection pursuant to another provision, e.g. one of the safe third country exceptions in the Asylum Procedures Directive?86 In that case, such a provision would have a different meaning in 84

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Article 12(1) of the 2004 and 2011 Recast Qualification Directive: ‘A third-country national or a stateless person is excluded from being a refugee if: (a) he or she falls within the scope of Article 1(D) of the Geneva Convention, relating to protection or assistance from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees. When such protection or assistance has ceased for any reason, without the position of such persons being definitely settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, those persons shall ipso facto be entitled to the benefits of this Directive; (b) he or she is recognised by the competent authorities of the country in which he or she has taken up residence as having the rights and obligations which are attached to the possession of the nationality of that country, or rights and obligations equivalent to those’. Cf. the exclusion clause for subsidiary protection, Article 17 of the 2004 and 2011 Recast Qualification Directives. Article 35 or 38 of the 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, oj L180/60, 29 June 2013 (Asylum Procedures Directive).

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the context of assessment of refugee and of subsidiary protection status, which is an unreasonable interpretation. As to Article 12(1)(a), the provision referring to Article 1D Refugee Convention that excludes Palestinians, the Court of Justice has resolved the issue: Palestinians excluded pursuant to this provision can be eligible for subsidiary protection.87 This difference is the more striking, as the refugee status is primary to subsidiary protection status.88 Similar inexplicable differences can be found as regards sur place claims (see above, Part 4.1), Article 1D (see Part 4.3 below) and exclusion. Exclusion from refugee status on public order grounds is limited to the grounds mentioned in Article 1F Refugee Convention,89 those for exclusion from subsidiary protection are considerably wider.90 Why is unclear, in particular how the 87

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Case C‑364/11 Abed El Karem El Kott and Others v Bevándorlási és Állampolgársági Hivatal (cjeu, 12 December 2012) para 68: ‘as it refers only to refugee status, Article 12(1)(a) of Directive 2004/83 does not exclude any person from subsidiary protection status within the meaning of Article 2(e) of the directive, and Article 17 thereof, which sets out the grounds for exclusion from subsidiary protection, contains no reference to protection or assistance from an agency such as unrwa’. Cf. Article 2(f) of the 2011 Recast Qualification Directive, and Article 78(2)(b) tfeu. Article 12(2) of the 2011 Recast Qualification Directive: ‘A third-country national or a stateless person is excluded from being a refugee where there are serious reasons for considering that: (a) he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he or she has committed a serious non-political crime outside the country of refuge prior to his or her admission as a refugee, which means the time of issuing a residence permit based on the granting of refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes; (c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations’. Article 17 of the 2011 Recast Qualification Directive: ‘1. A third-country national or a stateless person is excluded from being eligible for subsidiary protection where there are serious reasons for considering that: (a) he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he or she has committed a serious crime; (c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations; (d) he or she constitutes a danger to the community or to the security of the Member State in which he or she is present. 2. Paragraph 1 applies to persons who incite or otherwise participate in the commission of the crimes or acts mentioned therein. 3. Member States may exclude a third-country national or a stateless person from being eligible for subsidiary protection if he or she, prior to his or her admission to the Member State concerned, has committed one or more crimes outside the scope of paragraph 1

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­differences in the respective definitions – well-founded fear of being persecuted on a Convention ground versus real risk of serious harm – could warrant this distinction. Maintaining these differences (or rather, not abolishing them – amendment of these provisions was not considered at any moment during the recasting) is obviously a missed opportunity to render the grounds for qualification more systematic. 4.3 The Court of Justice on Exclusion of Palestinians According to unhcr, as we will see below, Article 12(1)(a) as interpreted by the Court of Justice is at variance with international law. If that is true, the provision should have been amended. As the matter is rather technical, I will have to elaborate on it into some detail. Article 12(1)(a) addresses the exclusion and inclusion of (in fact) Palestinians, a matter regulated in the Refugee Convention in Article 1D. That provision runs as follows: This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance. When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention. Thus, the first clause serves as an exclusion ground for (in fact) Palestinians, and the second one addresses their inclusion if the first clause does not apply. 4.3.1 Bolbol: Receiving Protection and Assistance The Court of Justice clarified the meaning of Article 12(1)(a) in two subsequent rulings. In Bolbol, it addressed the meaning of ‘at present receiving protection or assistance’ from (in fact) unrwa in the first, exclusionary clause.91 Bolbol had fled the Gaza strip and asked for asylum in Hungary, where it was established that he never had invoked protection or assistance from unrwa. But

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which would be punishable by imprisonment, had they been committed in the Member State concerned, and if he or she left his or her country of origin solely in order to avoid sanctions resulting from those crimes’. Case C-31/09 Nawras Bolbol v Bevándorlási és Állampolgársági Hivatal [2010] I-05539.

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Bolbol said he would have been eligible for protection as some family members of his were. The Court of Justice however pointed out that unrwa’s ‘Consolidated Eligibility and Registration Instructions’ defined as eligible for protection and assistance Palestinian residents who lost ‘home and means of  livelihood’ as a result of the 1948 conflict, but also others such as ‘nonregistered persons displaced as a result of the 1967 and subsequent hostilities’.92 Thus, unregistered persons could be eligible.93 As Article 1D concerns persons ‘at present’ receiving protection, it is required that they actually did avail themselves of it – it is not sufficient that a person once was or could be eligible.94 The Court added in an obiter that such persons (i.e. Palestinians who are eligible for protection and assistance but did not yet receive it) may have their application for refugee status examined pursuant to Article 2(c) (old),95 thus the refugee definition of Article 1A(2) Refugee Convention. 4.3.2 El Kott: Cessation of Protection and Assistance The second case, of El Kott and others concerned three Palestinian who lived in unrwa refugee camps until their homes were destroyed, or they were threatened by third parties. The referring court asked whether the cessation of protection or assistance by unrwa ‘for any reason’ as meant in Article 12(1)(a) concerned the situation of a person who left that unrwa’s area of operations in circumstances such as those characterizing the departure of each of the applicants in the main proceedings.96 The unhcr had issued the opinion that Article 1D applies to every Palestinian outside the area of activity of unrwa.97 The Court of Justice however observed that that reading would deprive the exclusion part of Article 12(1)(a), stating that the Convention does not apply to persons receiving protection or assistance from unrwa, of all practical effect. Furthermore, a reading according to which all Palestinians could claim refugee status in Europe by leaving unrwa’s area of operations would run counter to the objective of excluding those who receive ‘assistance’.98 So when does 92 93 94 95 96 97

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Ibid para 45. Ibid para 46. Ibid para 53. Ibid para 54. Case C‑364/11 Abed El Karem El Kott and Others v Bevándorlási és Állampolgársági Hivatal (cjeu, 12 December 2012) para 41. unhcr, unhcr Written Intervention before the Court of Justice of the European Union in the Case of El Kott and Others v Hungary, 27 October 2011, C-364/11 (2011) 13–14 accessed 12 October 2014. El Kott (n 96) paras 50–51.

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unrwa protection and assistance cease ‘for any reason’ for the purposes of Article 1D? According to the Court of Justice, when a Palestinian’s ‘personal safety was at serious risk and it was impossible for [unrwa] to guarantee that his living conditions in that area would be commensurate with the mission entrusted to [unrwa]’.99 The Court did not bother to explain how this standard relates to the requirements of the inclusion clause, Article 1A(2) Refugee Convention. The other question referred by the Hungarian Court concerned the last part of Article 12(1)(a), stating that a Palestinian for whom protection and assistance have ceased ‘shall ipso facto be entitled to the benefits of this Directive’. The Court of Justice ruled that it means that refugee status must be recognized, provided the other exclusion grounds of Article 12 do not apply.100 4.3.3 unhcr on Bolbol and El Kott Does this reading comply with the Refugee Convention? In a later note on Article 1D, unhcr has observed that the Court of Justice’s reading of cessation ‘for any reason’ as well as ipso facto entitlement is roughly the same as unhcr’s.101 It did not repeat its position that unrwa protection has ceased for all Palestinians who enter the European Union. Indeed, the Court’s explanation why such a reading would be unreasonable is quite convincing. unhcr did however maintain that the Court of Justice construed the exclusion part of Article 1D too narrowly: the provision should also cover persons who were eligible for unrwa protection, but did never avail themselves of it.102 The idea is that in this way, the scope of the inclusion ground of Article 1D (ipso facto qualification if protection has ceased) would be broader and unhcr advises Member States to do so, stating more ‘beneficial’ rules pursuant to Article 3 of the Directive. This astonishing reading seems due to the ‘purposes’ of Article 1D identified by unhcr: the exclusion clause serves to ‘avoid overlapping’ between its own and unrwa’s mandate, the inclusion clause to ‘ensure the continuity of protection and assistance for Palestinian refugees whose refugee character has already been established and recognized by various United Nations 99 Ibid para 63. 100 Ibid para 81. 101 unhcr, Note on unhcr’s Interpretation of Article 1D of the 1951 Convention relating to the Status of Refugees and Article 12(1)(a) of the eu Qualification Directive in the Context of Palestinian Refugees Seeking International Protection, May 2013, 5 accessed 1 May 2015. 102 Ibid 4.

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General Assembly resolutions, in circumstances where that protection or assistance has ceased’.103 Arguably, this is a misreading of the Refugee Conven­ tion. That instrument is first and foremost concerned with obligations of states vis-a-vis refugees, not with demarcating mandates of un organizations. The purpose and meaning of Article 1, 1D not excluded, is hence first and foremost defining who is eligible for state protection. Obligatory exclusion from refugee status pursuant to Article 1D is first and foremost exclusion from state protection and not from the unhcr mandate. And whatever protection and assistance by unrwa can possibly entail, it is not and cannot be equivalent to the protection pursuant to Articles 2–34 Refugee Convention. unhcr’s reading hence construes the first clause of Article 1D Refugee Convention overly wide, and hence renders the refugee definition under-inclusive. Reducing the scope of refugee protection as suggested by unhcr would therefore not be allowed for under Article 3 of the Directive, as this provision allows only for more beneficial rules. 4.3.4 Concluding Remarks on Bolbol and El Kott Two more remarks may be made on the rulings on Article 12(1)(a). First, the Court – following unhcr – introduces ‘serious risk’ to ‘personal safety’ and impossibility for unrwa to ‘guarantee’ living conditions. The Court does not (and neither does unhcr) explain how these standards relate to the standards set in Article 2(c) and 2(e) of the 2004 Directive (Article 2(d) and 2(f) of the 2011 Recast Qualification Directive), that is the definitions of refugees and persons eligible for subsidiary protection; in other words, it is left unclear how serious risk, well-founded fear and real risk relate to each other. The judgments further beg the question whether both requirements do apply cumulatively – is there still ‘protection and assistance’ by unrwa if it guarantees certain living conditions, even though that person’s personal safety is at serious risk? Put otherwise, the judgments are not beneficial for the coherence in the Common European Asylum System. As to compliance with international law, we may observe that e.g. Hathaway has argued that Article 1D is at odds with object and purpose of the Refugee Convention.104 Indeed, exclusion of a particular group directly or indirectly on the basis of its ethnicity is hardly consistent with the Convention. The absence of this exclusion ground from the rules on subsidiary protection may be explained as tacit acknowledgement.

103 Ibid 4. 104 See Hathaway 1991 (n 42).

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4.4 Serious Harm 4.4.1 Articles 5 and 6 European Convention on Human Rights According to case law of the European Court of Human Rights, expulsion is prohibited if it results in treatment contrary to Articles 3 (ill-treatment),105 2 (the right to life),106 and – certain requirements fulfilled – 6 (fair trial) and 5 (habeas corpus).107 It is not wholly excluded that other provisions might prohibit expulsion as well.108 But the Directives of 2004 and 2011 address only the first two prohibitions: a person is eligible for subsidiary protection if he or she risks ‘death penalty or execution’ or torture inhuman or degrading treatment or punishment. Thus, the Common European Asylum System does not secure an international protection status in case (only) Article 5 or 6 echr prohibits expulsion and in so far is not consistent with the aim to offer a status to anyone in need of subsidiary forms of protection.109 It is questionable, though, whether this omission has much significance. All cases where the European Court hitherto addressed these latter two prohibitions were extradition cases. Arguably, in the rare cases where Article 6 does prohibit expulsion but a violation of Article 3 or 2 echr is at risk, the exclusion clause of Article 17 of the 2011 Recast Qualification Directive will usually apply. 4.4.2 Humanitarian Cases A somewhat similar issue arises as regards the scope of Article 15(b), that (in both the 2004 and the 2011 Recast Qualification Directive) defines as serious harm for the purposes of the definition of a person eligible for subsidiary protection ‘torture or inhuman or degrading treatment or punishment of an applicant in his country of origin’ [emphasis added]. In M’Bodj, the Court of Justice had to address the question whether a person asking for asylum on medical grounds could be eligible for subsidiary protection on this ground (and hence to the grant of social welfare and health care benefits pursuant to Article 28 and 29). The ecj observed that in this type of case, the deprivation of health care in the country of origin was not ‘intentional’.110 Article 6 of the Directive that defines the actors of harm, ‘supports the view that such harm must take the form of conduct on the part of a third party and that it cannot therefore simply be the result of general shortcomings in the health system of the 105 106 107 108 109 110

Soering v United Kingdom (1989) Series A no 161. Bader and Kanbor v Sweden Appl no 13284/04 (ECtHR, 8 November 2005) para 42. Othman v uk Appl no 8139/09 (ECtHR, 17 January 2012) paras 233 and 258. Z and T v uk Appl no 27034/05 (ECtHR, 28 February 2006). Preamble recital (6). Case C-542/13 Mohamed M’Bodj v État belge (cjeu, 18 December 2014) para 31.

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country of origin’.111 This reading is supported by the Preamble, which states that risks to which the population of a country or a section of the population is generally exposed do not normally in themselves create an individual threat which would qualify as serious harm, and that the scope of subsidiary protection does not extend to persons who are granted leave to remain on compassionate or humanitarian grounds.112 The Court further observed that the removal of a foreigner may raise an issue under Article 3 echr due to medical circumstances, but this does mean that such Article 3 echr cases do fall within the scope of Article 15(b); thus, such medical cases fall outside the scope of subsidiary protection.113 Could a Member State nevertheless extend such protection, and hence social welfare and health care on the same footing as for refugees, to such medical cases, by appeal to Article 3 Directive which allows for maintaining or introducing more favourable standards on qualification in so far as those standards are compatible with the Directive? The Court rules they cannot – it ­follows from the reasons for excluding medical cases form the scope of Article 15(b) discussed above that inclusion of medical cases would be ‘contrary to the grand scheme and objectives’ of the directive as such cases have ‘no connection with the rationale of international protection’ and would therefore be incompatible with the Directive.114 But in Abdida, a judgment delivered the same day as M’Bodj, it also ruled that certain provisions of the Returns Direc­ tive require that appeal against removal that would threat a foreigner with a serious risk of grave and irreversible deterioration in his state of health must have suspensive effect, and that as long as expulsion is ‘postponed’ (during appeal proceedings or otherwise), and that the Member States must in so far as possible provide for the basic needs of such a foreigner, to ensure that that person may in fact avail himself of emergency health care and essential treatment of illness.115 In sum, as medical cases fall outside the scope of Article 15(b) Directive Member states may not issue subsidiary protection status to them, but they must provide for a sort of basic reception conditions if removal would be sufficiently dangerous for them. We may observe that under the

111 Ibid para 35. 112 Ibid paras 36–37, referring to Preamble recitals (26), and (5), (6), (8) and (24) Directive 2004. 113 Ibid paras 39–40. 114 Ibid paras 43–44. 115 Case C-562/13 Centre public d’action sociale d’Ottignies-Louvain-la-Neuve v Moussa Abdida (cjeu, 18 December 2014) para 63.

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Returns Directive, it would seem that Member States remain free to issue a residence permit on humanitarian grounds as well.116 What to think of this outcome in the light of the standards mentioned above, harmonisation, securing compliance and furthering the common European asylum system? First, international law. The case-law on medical cases the Court of Justice referred to originated in the case D v uk, where the European Court of Human Rights ruled that due to the ‘very exceptional circumstances’ of the case and to ‘compelling humanitarian considerations’, Article 3 echr prohibited the expulsion of a dying man who received palliative care in the United Kingdom and would be deprived of medical care in a compassionate environment.117 It concerned a situation where ‘it cannot be said that the conditions which would confront him in the receiving country are themselves a breach of the standards of Article 3’.118 Rather, the denial of care in the uk seems to constitute the ill-treatment here. Hence, the ill-­ treatment did not take place ‘in the receiving country’. Indeed, it follows from the legislative history of the 2004 Directive that this clause was inserted in order to exclude cases as D v uk.119 More important for present purposes, we should observe that D v uk also implied an obligation to continue medical care. As obligations under Article 3 echr do in principle not go much further and certainly do not imply in general an obligation to issue some residence status, M’Bodj combined with Abdida does serve to secure compliance with international law – the obligation not to expel medical cases and to provide them with medical care was previously not mentioned in case-law or legislation. The ruling that Member States are not allowed to extend subsidiary protection to medical cases pursuant to Article 3 Directive is a bit surprising, especially when taking into account the reasoning: inclusion of such cases, we saw, 116 Cf. Article 6(4) of Directive 2008/115/EC of the European Parliament and the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, oj L 348/98, 24 December 2008. Likewise, the Court of Justice ruled in Cases C-57/09 and C-101/09 Bundesrepublik Deutschland v B and D (9 November 2010) para 121 that ‘Article 3 of Directive 2004/83 must be interpreted as meaning that Member States may grant a right of asylum under their national law to a person who is excluded from refugee status pursuant to Article 12(2) of the directive [i.e. Article 1F Refugee Convention], provided that that other kind of protection does not entail a risk of confusion with refugee status within the meaning of the directive’. 117 D v uk Appl no 30240/96 (ECtHR, 2 May 1997), confirmed in N v uk Appl no 26565/05 (ECtHR, 27 May 2008). 118 D v uk Appl no 30240/96 (ECtHR, 2 May 1997) para 53. 119 See Opinion of Avocate General Bot, in Centre Public d’Action Sociale d’Ottignies-LouvainLa-Neuve v Moussa Abdida, C-562/13 (4 September 2014) point 82.

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would run counter to the grand scheme and objectives of the Directive, as these cases ‘have no connection with the rationale of international protection’. Whether Article 15(b) requires inclusion of medical cases is a quite different question from whether inclusion is compatible with the Directive, so the Court could not base its answer to the latter question by referring to the first. And that medical cases have ‘no connection with the rationale of international protection’ is an overstatement, to say the least. Both medical and international protection cases concern application of Article 3 echr to removal, obviously. More important, the case law of the European Court of Human Rights shows that medical cases and international protection are quite closely related issues. In Sufi and Elmi, it had to decide whether the risk to suffering due to famine and other ‘socio-economic circumstances’ should be measured along the (very strict) standards meted out in D v uk, or according to the usual real risk standard as applied in the Directive.120 It depends on cause and circumstances, the Strasbourg Court decided, thus illustrating how close the two types of cases are connected.121 However that may be, we should also observe that the solution found by the Court of Justice, i.e. not allowing for extension of subsidiary protection to medical cases while requiring the issuing of certain benefits pursuant to the returns Directive, seems to contribute to harmonisation. Had the Court decided otherwise, medical cases obviously would have received asylum status in one, and just protection from expulsion in another Member State. Still, similar differences may continue to exist. In M’Bodj the Court of Justice pointed out that some residence permits on humanitarian or compassionate grounds fall outside the scope of the Directive. Hence, Member States may issue in medical cases such permits, just like they are allowed to do to persons excluded on the basis of Article 1F Refugee Convention.122 The contribution to further harmonisation is thus at best only rather partial. Finally, by basing its solution on both the Asylum Qualification Directive and the Returns Directive, the cases of M’Bodj and Abdida taken together certainly contribute to the integration of the Common European Asylum System. 4.4.3 Article 15(c): An Individual Threat by Reason of Indiscriminate Violence Uncertainty as to how the scope of subsidiary protection relates to that of Article 3 echr also existed as regards Article 15(c). The text of that provision in 120 Sufi and Elmi v uk Appl nos 8319/07 and 11449/07 (ECtHR, 28 June 2011) para 283. 121 Ibid para 283 ff. 122 See n 116 above.

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the 2004 Directive was strikingly inconsistent: serious harm can take the form of a ‘serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict’. Thus, the threat should be both ‘individual’ and by reason of ‘indiscriminate violence’. The provision further raised the question how it related to Article 3 echr – did it offer more or less protection? The Dutch Council of State referred that question to the Court of Justice in the case of Elgafaji.123 The ecj solved the tension by ruling that the provision did not require that the applicant be ‘specifically targeted by reason of factors particular to his ­personal circumstances’, and that the existence of a threat as meant in Article 15(c) can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place […] reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat.124 Put otherwise, if the violence is sufficiently intense all people hailing from that area are threatened. As to the conformity with Article 3 echr, we should note that between the reference for the ruling in 2007 and the ecj’s judgment in 2009, the European Court of Human Rights had reasoned along similar lines: exceptionally, a real risk might be due to a ‘general situation of violence’ in a country which entailed that ‘no further special distinguishing features’ were required.125 In Elgafaji the Court of Justice was somewhat ambiguous about the relation between 15(c) and 3 echr and to na v uk in particular. On the one hand, it stated that Article 15(b) corresponds, in essence, to Article 3 echr, whereas Article 15(c) is a provision, the content of which is different from that of Article 3 of the echr, and the interpretation of which must, therefore, be carried out independently, although with due regard for fundamental rights, as they are guaranteed under the echr.126 123 124 125 126

Case C-465/07 Meki Elgafaji and Noor Elgafaji v Staatssecretaris van Justitie [2009] I-921. Ibid para 43. na v United Kingdom Appl no 25904/07 (ECtHR, 17 July 2008) para 113. Case C-465/07 Meki Elgafaji and Noor Elgafaji v Staatssecretaris van Justitie [2009] I-921 para 28.

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On the other hand, it emphasized that its interpretation of Article 15(c) was ‘fully compatible’ with Article 3 echr, including na v uk.127 Thus, Article 15(c) is to be interpreted independently from Article 3 echr, but the result of that interpretation is ‘compatible’ with that provision. The European Court of Human Rights for its part opined in a later judgment that it was ‘not persuaded that Article 3 of the Convention, as interpreted in na v uk, does not offer comparable protection to that afforded under the Directive’.128 We may therefore conclude that Article 15(c) of the Directive and the Court of Justice’s interpretation of it are in line with relevant international law. 4.4.4 Article 15(c): Internal Armed Conflict Some courts and commentators argued that the protective scope of Article 15(c) should be construed in accordance with international humanitarian law, such as Common Article 3 of the Geneva Conventions and Article 1(1) of the Second Protocol to that Convention. But the European Court of Justice has rejected that suggestion in Aboubacar Diakité.129 The question concerned the meaning of ‘internal armed conflict’. The Court held that the wording differed from that in international humanitarian law, and that humanitarian law and subsidiary protection served different aims – the former is also concerned with criminal liability for war crimes.130 For the purposes of Article 15(c), there is an internal armed conflict ‘if a State’s armed forces confront one or more armed groups or if two or more armed groups confront each other’. Requirements on the intensity of the conflict or the organization of the armed groups involved in the conflict do not apply – as they do under international humanitarian law.131 Thus, the Court choose for an independent meaning which is wider than it would otherwise have been and thus secured that Article 15(c) can apply in all situations of general violence as meant in the Strasbourg judgment na v uk. Thus, it secured compatibility with Article 3 echr. We may note that the European Court of Justice did not explain which meaning threat to ‘a civilian’s’ life or person in Article 15(c) could have (in Diakité nor in Elgafaji). The term civilian obviously points towards a humanitarian law reading of the provision, but it is hard to envisage which meaning the element could have in an Article 3 echr context. 127 Ibid para 44. 128 Sufi and Elmi v uk Appl nos 8319/07 and 11449/07 (ECtHR, 28 June 2011) para 226. 129 C-285/12 Aboubacar Diakité v Commissaire général aux réfugiés et aux apatrides (cjeu, 30 January 2014). 130 Ibid paras 20–25. 131 Ibid paras 26 and 36.

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4.5 Well-founded Fear Another issue only very partially addressed in the 2004 and 2011 Recast Qualification Directives is the refugee definition element ‘well-founded fear’. It may be noted that the Commission in its proposal for the 2004 Directive suggested that a ‘reasonable probability test’ should apply132 – a proposal that was not adopted. Nor does the 2011 Recast Qualification Directive fill in this lacuna. Thus, well-founded fear remains the only element in the refugee definition that has no provision in Chapter ii of the Directive explicitly dedicated to it. Should we assume that the interpretation of well-founded fear therefore falls outside the scope of the Directive and hence of the ceas? 4.5.1 Group Persecution It appears that this absence of rules on well-founded fear proved not to be an obstacle for the European Court of Justice to rule on the matter in X, Y and Z.133 The case concerned three homosexual men who stated that they feared persecution inter alia because homosexual acts were prohibited by criminal law in their countries of origin. The referring court asked whether Article 9 of the Directive, which defines the term ‘persecution’, must be interpreted as meaning that the mere fact that homosexual acts are criminalized and accompanying that criminalization with a term of imprisonment is an act of persecution’.134 The European Court of Justice decided that the mere existence of such a rule is not sufficient, but that ‘a term of imprisonment which sanctions homosexual acts and which is actually applied in the country of origin which adopted such legislation must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution’.135 It seems to follow that if there is an active policy of prosecution of homosexual acts, all gay men from that State would have well-founded fear of persecution. Thus, the judgment implies that well-founded fear may exist in the form of group persecution, which amounts to an interpretation of well-founded fear.

132 European Commission, Proposal for a Council Directive on Minimum Standards for the Qualification and Status of third country nationals and stateless persons as refugees or as Persons Who Otherwise Need International Protection, 12 September 2001, COM(2001) 510 final, 43 (Article 7(b)). 133 Cases C-199/12, C-200/12 and C-201/12 Minister voor Immigratie en Asiel v X and Y and Z v Minister voor Immigratie en Asiel (ecj, 7 November 2013). 134 Ibid para 50. 135 Ibid para 61.

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4.5.2 Discretion The Court addressed well-founded fear more explicitly in its discussion of and answer to another question in the same case: whether Article 10(1)(d) [the provision defining the particular social group], read together with Article 2(c) thereof [which renders the refugee definition of Article 1A(2) Refugee Convention], must be interpreted as meaning that it is unreasonable to expect that, in order to avoid persecution, an asylum seeker must conceal his homosexuality in his country of origin or exercise restraint in expressing it.136 In its answer, the Court of Justice relied on a distinction between ‘concealing’ sexual identity and ‘exercising restraint in expressing it’, without explaining the difference.137 It ruled that requiring homosexuals to conceal their identity was incompatible with their recognition as a particular social group, which entails recognition of that identity as a characteristic so fundamental that a person cannot be required to renounce it.138 The Court placed the issue of exercise of restraint in the context of well-founded fear, and concluded that requiring restraint could also not be required. It is unclear why the Court treated restraint as an aspect of well-founded fear – but what matters for present purposes: this link to well-founded fear did not place the issue outside the scope of the Directive (and hence the Court’s jurisdiction). 4.5.3 Assessment Finally, the Court of Justice shed some light on the implications of Article 4 (which remained unaltered in the Recast Directive) for the assessment of applications for asylum. According to Article 4(1), Member States may consider it the duty of the applicant to submit as soon as possible all elements needed to substantiate the application for international protection. In cooperation with the applicant it is the duty of the Member State to assess the relevant elements of the application. In MM, the Irish High Court asked whether the second sentence (in particular the duty to cooperate) implies that the authorities must supply the applicant with the outcome of the assessment before taking a decision, so as to enable 136 Ibid para 65. 137 Ibid para 64. 138 Ibid para 72.

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the applicant to address the aspects of the assessment which suggest a negative decision.139 The Court of Justice stated that such an obligation does not follow from the wording of Article 4(1), and that if the legislator had intended such an obligation, the Directive would have stated so in more explicit terms.140 It further stated that the assessment takes place in two stages. The first stage concerns the establishment of facts; the second states the appraisal of that evidence, i.e. the determination whether the requirements for the grant of protection are met.141 The duty to cooperate concerns the first stage. It falls upon the applicant to submit all relevant elements to substantiate the application. But if the elements submitted by the applicant are not complete, up to date or relevant, the authorities must ‘cooperate’ so that all elements are assembled.142 The duty to cooperate does not concern the second stage, the appraisal of that evidence.143 The Court added that the purpose of the Directive is laying down the criteria for granting international protection, not procedural standards,144 and continued to address the scope of the right to be heard in an asylum procedure as defined by Article 8 of the Asylum Procedures Directive and Article 41 Charter. Although it is certainly true that the latter provision rather than Article 4 of the Directive addresses the right to be heard, the statement that ‘Directive 2004/83 in no way seeks […] to prescribe the procedural rules applicable to the examination of an application’145 is surprising, given the previous considerations on the rules on assessment following from Article 4(1). Arguably, procedural and substantive law cannot be distinguished as neatly as the Court suggests in the realm of risk assessment. However that may be, we should observe that the ruling on the duty to cooperate seems to be in conformity with the unhcr Handbook, that states that ‘while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner’ and that ‘in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application’.146 The Court for its part merely states that ‘A Member State may also be better placed than an applicant 139 C-277/11, MM v Minister for Justice, Equality and Law Reform, Ireland and Attorney General (cjeu, 22 Novemver 2013) para 56. 140 Ibid para 61. 141 Ibid para 64. 142 Ibid para 66. 143 Ibid para 68. 144 Ibid paras 72–73. 145 Ibid para 73. 146 unhcr Handbook (n 10) para 195.

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to gain access to certain types of documents’147 which suggests that the duty to cooperate imposes on the authorities the duty to use the means at their disposal if they are better placed to produce certain documents. In A, B and C, the Court was asked to address whether Article 4 imposes limits on the authorities when assessing facts and circumstances regarding a declared sexual orientation.148 It starts with stating that the authorities are not required to hold the applicant’s declarations as regards sexual identity as a fact; this declaration may be subject of assessment as statements in each other application may.149 However, the methods must be modified to ‘the specific features of each category of application for asylum’ and observe the right to respect for private life as laid down in Article 7 of the Charter.150 In order to provide a useful answer, the Court then addressed a number of particular methods mentioned in the referring ruling. First, questions based on stereotyped notions. These may be a ‘useful element’ according to the Court, but inability of answering such questions cannot suffice to establish that the applicant lacks credibility as pursuant to Article 4(3)(c), all personal circumstances must be taken into account.151 Second, questions concerning sexual acts are contrary to Article 7 Charter and therefore not allowed for. Third, the authorities may not ask applicants to submit to tests or allow applicants to submit films of intimate acts: that would be contrary to human dignity (Article 1 Charter) and might incite other applicants to submit such evidence and hence amount to requiring it.152 Finally, the Court addressed the question whether an applicant may be found to lack credibility if he or she did not mention the sexual orientation on the first occasion. The Court stated that the duty to submit all elements ‘as soon as possible’ (Article 4(1)) is tempered by the duty to take all circumstances into account, so later submission is not sufficient to deem the orientation not credible.153 For the most parts, these answers seem to be well in line with the statements by unhcr on the issue.154 Only the fact that the Court of Justice allows 147 MM (n 139) para 66. 148 Cases C-148/13, C-149/13 and C-150/13 abc v Staatssecretaris van Veiligheid en Justitie (cjeu, 2 December 2014) para 143. 149 Ibid paras 49–52. 150 Ibid paras 54 and 64. 151 Ibid para 62. 152 Ibid paras 64–65. 153 Ibid para 70. 154 unhcr, unhcr’s Oral Submissions at the Court of Justice of the European Union: Hearing of the Case of Minister voor Immigratie en Asiel v A, B and C 25 February 2014, February 2014.

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for stereotyped questions might raise some doubts. However, if one assumes that to a certain degree all questioning in assessment of asylum applications may be said to start from stereotyped notions (e.g. religious acts assumed to be common to the members of a certain community), the emphasis on personal circumstances is the central element of the answer. 5 Conclusion The recast of the rules on qualification for international protection in the Recast Qualification Directive can be qualified as piecemeal engineering. No new category of persons eligible for protection was included next to refugees and persons eligible for subsidiary protection. The definitions for these two categories remained the same as well. The amendments introduced concerned parts of elements of these definitions. Most of them secured more harmonisation (e.g. stricter rules on the element protection in Article 7), observance of international law (again the stricter rules on protection, Article 7(2), the deletion of Article 9(3) of the 2004 Directive) and some of them also more coherence (Article 2). But the legislator also missed quite some opportunities for improvement, that is for further harmonisation, better observance of international law (the cumulative requirements for belonging to a particular social group in Article 10(1)(d), or the spurious rules on sur place refugee hood, Article 5(3)). It seems unlikely that the Directive will be recast once more in the near future. That needs not to be a problem, as new issues can be brought before and solved by the Court of Justice – like the issue of discretion in applications by homosexuals. That means that the role of the Court of Justice will be even more important than it was. We noted above that all aspects of qualification for protection seem to fall within its scope of review, apart from prohibitions of refoulement under Article 5 and 6 echr. We also saw that the Court has solved a number of important issues (e.g. aspects of the meaning of Article 15(c), or the issue of discretion). But we also noted that the Court has neglected on some occasions convincing readings by unhcr (e.g. on cessation, and on the meaning of Article 1D of the Refugee Convention). Let us hope the instrument is in good hands.

chapter 9

Refugee Status and Subsidiary Protection: Towards a Uniform Content of International Protection? Céline Bauloz* and Géraldine Ruiz** 1 Introduction Since the 2004 Qualification Directive,1 international protection in the European Union (eu) is of a double nature. It not only relies on the refugee status established by the 1951 Geneva Convention and its 1967 Protocol,2 but also entails the granting of another form of protection: subsidiary protection. The latter builds on Member States’ non-refoulement obligations under international human rights law – more particularly the 1950 European Convention on Human Rights (echr)3 – and is granted to asylum-seekers not qualifying as  refugees but * PhD, Graduate Institute of International and Development Studies, Geneva; Senior Fellow, Global Migration Centre; Managing Editor, Refugee Survey Quarterly, Oxford University Press. ** PhD, Graduate Institute of International and Development Studies, Geneva; Senior Coor­ dinator, Global Migration Centre, Graduate Institute of International and Develop­ment Studies, Geneva. 1 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, oj L 304/12, 30 September 2004 (2004 Qualification Directive). This Directive was amended in 2011: 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 the content of the protection granted (recast), oj L 337/9, 20 December 2011 (2011 Recast Qualification Directive). Although replaced by the Recast Directive, the 2004 Directive still binds some specific Member States which have opted out of the recast. This is the case of the United Kingdom and Ireland (see Recital 50 of the Recast Directive), as well as Denmark (see Recital 51 of the Recast Directive). 2 See Article 2(c) and (d) of the Recast Qualification Directive taking up the refugee definition of Article 1(A)(2) of the Geneva Convention relating to the Status of Refugees (189 unts 150, 28 July 1951 (entry into force 22 April 1954)), as amended by its 1967 Protocol (606 unts 267, 31 January 1967 (entry into force 4 October 1967)). 3 Convention for the Protection of Human Rights and Fundamental Freedoms, 213 unts 222, ets No. 005, 4 November 1950 (entry into force 3 September 1953). On the human rights

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­ onetheless in need of protection because of risks of serious harm if sent back n to their country of origin.4 However, these two types of international protection have not been conceived on an equal footing. Subsidiary protection has been instituted as complementary to the refugee status, that is, subsidiarily granted when the latter cannot be conferred.5 This hierarchy of forms of protection was justified by the eu on the basis of two considerations. First, it was presented as necessary for securing the primacy of the Geneva Convention and its refugee status.6 Second, this hierarchy was also warranted by the arguably more temporary nature of subsidiary protection. According to the eu Commission, ‘this status [was] considered, in the majority of Member States, as a temporary one’.7 Combined together, these justifications have had two interrelated consequences: examination of the refugee status has to precede that of subsidiary protection,8 while the latter has to confer lesser rights and benefits than the former. This last implication was clearly explained by the eu Commission in its 2001 proposal for a Qualification Directive:

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foundation of subsidiary protection, see most notably: Note from the Presidency to the Asylum Working Party, Discussion Paper on Subsidiary Protection, eu Doc. 13167/99 asile 41, 19 November 1999, 2 and Note from the Presidency to the Asylum/Migration Working Group, Implications of Article 3 of the European Convention on Human Rights for the Expulsion of Illegally Resident Third Country Nationals, eu Doc. 7779/97 asim 89, 28 April 1997. See Article 2(f) of the Recast Qualification Directive for the definition of a ‘person eligible for  subsidiary protection’ and Article 15 for the serious harms justifying protection which encompass: ‘(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian’s life or person by reasons of indiscriminate violence in situations of international or internal armed conflict’. This was how subsidiary protection had been understood since its inception. See for instance, Note from the Danish Delegation to Migration and Asylum Working Parties, Subsidiary Protection, eu Doc. 6764/97 asim 52, 17 March 1997, 6: ‘Subsidiary protection have been defined as particularly those forms of protection that are not included in the Geneva Convention’. European Commission, Proposal for a Council Directive on Minimum Standards for the Qualification and Status of Third Country Nationals and Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection, com(2001) 510 final, 12 September 2001, 4 (Proposal, Qualification Directive). Ibid 29. This was clearly affirmed by the Court of Justice of the European Union. See for instance its recent judgment: Case C-604/12, hn v Minister for Justice, Equality and Law Reform, Ireland [2014], paras 30–35.

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In the main, the rights and benefits attached to both international protection statuses are the same, to reflect the fact that the needs of all persons in need of international protection are broadly similar. However, some differentiation has been made, in recognition of the primacy of the Geneva Convention and the fact that the regime of subsidiary protection starts from the premise that the need of such protection is temporary in nature, notwithstanding the fact that in reality the need for subsidiary protection often turns out to be more lasting. In order to reflect this underlying premise and reality entitlement to some important rights and benefits has been made incremental, requiring that a brief qualification period be served before a beneficiary of subsidiary protection status becomes eligible to claim them.9 The content of both forms of international protection has thus been differentiated within the 2004 Qualification Directive with subsidiary protection beneficiaries entitled to a less generous status than refugees.10 However, this variance in treatment based on the temporary nature of subsidiary protection was called into question from the inception. Already in 2001, the United Nations High Commissioner for Refugees (unhcr) voiced its concerns with regard to the Commission’s proposal: unhcr appreciates that […] many Member States consider subsidiary protection to be temporary in nature. Nevertheless, as is also pointed out elsewhere in the explanatory memorandum, the reality is that the need for subsidiary protection is often just as long-lasting as that for protection under the 1951 Convention.11

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European Commission, Proposal, Qualification Directive (n 6) 4. Exceptions to this differentiated status include access to information on the rights and obligations relating to the status granted (Article 22), access to education (Article 27), access to accommodation (Article 31) and freedom of movement within the host Member State (Article 32) the benefit of which is granted to the same extent to refugees and subsidiary protection beneficiaries. As apparent from the travaux préparatoires of the 2004 Qualification Directive, the differentiated treatment was in fact a compromise between Member States: it was made to secure Germany’s acceptance of the Directive in compensation of its recognition of non-state entities as actors of persecution and serious harm (Article 6). For a detailed account, see J. McAdam, Complementary Protection in International Refugee Law (oup 2007) 90–91. unhcr, unhcr’s Observations on the European Commission’s Proposal for a Council Directive on Minimum Standards for the Qualification and Status of Third Country Nationals

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The similar protection needs of both protection beneficiaries was eventually recognized as well by the very eu institutions, including the eu Commission: When subsidiary protection was introduced, it was assumed that this status was of a temporary nature. As a result, the Directive allows Member States the discretion to grant them a lower level of rights in certain respects. However, practical experience acquired so far has shown that this initial assumption was not accurate. It is thus necessary to remove any limitations of the rights of beneficiaries of subsidiary protection which can no longer be considered as necessary and objectively justified.12 In its proposal for a Recast Directive, the Commission thus suggested to ­completely uniformise the benefits attached to both international protection statuses.13 The establishment of such a uniform status was further supported by the 2009 Stockholm Programme.14 The 2011 Recast Qualification Directive has however not totally followed this new direction.15 While it has certainly improved the situation of subsidiary

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and Stateless Persons as Refugees or as Persons who Otherwise Need International Protection, reproduced in eu Doc. 14109/01 asile 54, 16 November 2001, 17, para 45. European Commission, Proposal for a Directive of the European Parliament and of the Council on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Beneficiaries of International Protection and the Content of the Protection Granted (Recast), com(2009) 551 final, 21 October 2009, 8 (Proposal, Recast Qualification Directive). See also European Parliament, Report on the Proposal for a Council Directive on Minimum Standards for the Qualification and Status of Third-Country Nationals and Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection, eu Doc. A5-0333/2002, pe 319.971, 8 October 2002, Amendment 66. European Commission, Proposal, Recast Qualification Directive (n 12) 34–42 (Chapter vii). European Council, The Stockholm Programme – An Open and Secure Europe Serving and Protecting the Citizens, oj C 115/1, 4 May 2010, 32. See Chapter vii of the Recast Qualification Directive. The Recast Directive is nonetheless in line with the Treaty on the Functioning of the European Union (tfeu) – as amended by the Treaty of Lisbon, which does not ask for a uniform status common to both refugees and subsidiary protection beneficiaries. Its Article 78 indeed provides that the European Parliament and the Council ‘shall adopt measures for a common European asylum system comprising: (a) a uniform status of asylum for nationals of third countries, valid throughout the Union; (b) a uniform status of subsidiary protection for nationals of third countries who, without obtaining European asylum, are in need of international protection […]’: Consolidated version of the tfeu (as amended by the 2007 Treaty of Lisbon (entry into force 1 December 2009)), oj C 326/47, 26 October 2012.

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protection beneficiaries (Part 2), the amended Directive has stopped short of entirely uniformising the two statuses of protection (Part 3). This partial uniformisation has implications for subsidiary protection beneficiaries in terms of integration and more fundamentally demonstrates that the idea of subsidiary protection as a more precarious form of protection has yet to be transcended within the Union (Part 4). 2

Two Statuses, One Protection: Benefits of Subsidiary Protection Beneficiaries Aligned with Those of Refugees

Overall, the call for uniformising the content of the two international protection statuses detailed in Chapter vii has been followed by the Recast Qualification Directive. Although the 2004 Directive already provided that the content of protection ‘shall apply both to refugees and persons eligible for subsidiary protection unless otherwise indicated’,16 most of its provisions differentiated between the two statuses. By contrast, the Recast Directive places subsidiary protection beneficiaries on equal footing with refugees with regard to most benefits, now including the right to family unity, issuance of travel documents, access to employment, to healthcare and to integration facilities.17 First, concerning family unity, the Recast Directive ensures family members of subsidiary protection beneficiaries the benefits of Chapter vii under the same conditions as refugees’ family members (Article 23). To do so, it has suppressed the possibility for Member States to determine on their own the conditions under which family members of subsidiary protection beneficiaries can

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Article 20(2) of the 2004 Qualification Directive. To some extent, Article 21 on the protection against refoulement – taken up verbatim by the 2011 Recast Directive – also establishes a differentiated treatment. The exceptions to the principle indeed apply only to refugees by virtue of Article 33(2) of the Geneva Convention. However, this difference is mitigated by the fact that these exceptions have been integrated to a certain extent within the subsidiary protection definition as exclusion clauses (Article 17(1)(d)). On the Article 33(2) foundations of Article 17(1)(d) of the Directive, see Outcome of Proceedings of the Asylum Working Party (meetings on 4–5 June 2002), eu Doc. 9038/02 asile 25, 17 June 2002, 24, note 1 where Austria, France, Ireland, the Netherlands, Portugal and Spain explicitly asked for ‘[o]ther grounds for exclusion, such as national security and public order [to] be cited, as well as those in Article 33(2) of the Geneva Convention’.

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benefit from comparable protection.18 This broad discretion left to Member States was only limited by their obligation to secure, at the very least, ‘an adequate standard of living’. Despite such uniformisation, the protective reach of Article 23 remains limited. First, family members who are or would be excluded from international protection are not covered by this provision, and thus not entitled to claim the benefits of Chapter vii.19 Second, Member States retain the possibility to ‘refuse, reduce or withdraw the benefits’ of Article 23 ‘for reasons of national security and public order’.20 Third, although the definition of family members has been extended to the parents of a minor,21 it remains limited to the nuclear family which already existed in the country of origin and whose members are present in the Member State where the application for international protection was lodged.22 As a result, while the recast of Article 23 has enhanced the situation for  subsidiary protection family members, the provision falls still short of 18

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See Article 23(2) of the 2004 Qualification Directive which provided that: ‘Member States shall ensure that family members of the beneficiary of refugee or subsidiary protection status, who do not individually qualify for such status, are entitled to claim the benefits referred to in Articles 24 to 34, in accordance with the national procedures and as far as it is compatible with the personal legal status of the family member. In so far as the family members of beneficiaries of subsidiary protection status are concerned, Member States may define the conditions applicable to such benefits. […]’. Article 23(3) of the Recast Qualification Directive. Article 23(4) of the Recast Qualification Directive. Article 2(j) of the Recast Qualification Directive which includes within its definition of family members: ‘the father, mother or another adult responsible for the beneficiary of international protection whether by law or by the practice of the Member State concerned, when that beneficiary is a minor and unmarried’. Article 2(j) of the Recast Qualification Directive. The wording of this provision contrasts with the Commission’s proposal, which suggested to include as well ‘the married minor children of the couples referred to in the first indent or of the beneficiary of international protection, regardless of whether they were born in or out of wedlock or adopted as defined under the national law, where it is in their best interests to reside in the same country as the beneficiary’ and ‘the minor unmarried siblings of the beneficiary of international protection, when the latter is a minor and unmarried, or when the beneficiary of international protection or his/her siblings are minors and married but it is in the best interests of one or more of them that they reside in the same country’: European Commission, Proposal, Recast Qualification Directive (n 12) 23. Under both the 2004 and 2011 Directives, Member States nonetheless have the possibility to extend the benefit of the right to family to ‘other close relatives who lived together as part of the family at the time of leaving the country of origin, and who were wholly or mainly dependent on the beneficiary of international protection at the time’ (Article 23(5)).

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ensuring a proper right to family reunification. This is even more so as, unlike refugees, subsidiary protection beneficiaries still do not benefit from such a right under the 2003 Family Reunification Directive.23 This last Directive has indeed not been amended as the Qualification Directive has, and has thus escaped the logic of the statuses’ uniformisation. To redress the situation, the eu Commission has nonetheless recommended ‘that the [Family Reunifi­cation] Directive should not be interpreted as obliging [Member States] to deny beneficiaries of […] subsidiary protection the right to family reunifi­cation’;24 but it remains that Member States are under no obligation to do so under eu law. Second, when it comes to travel documents, the Recast Directive keeps ­distinguishing between refugees and beneficiaries of subsidiary protection who are dealt with under two different paragraphs: Article 25(1) and (2) respectively. This differentiation is however quite logical as Article 25(1) builds on the detailed provisions on refugees’ travel documents laid down in the Geneva Convention.25 Though not per se applicable to subsidiary protection beneficiaries, the Recast

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See Article 3(2)(c) of the Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, oj L 251/12, 3 October 2003. European Commission, Communication from the Commission to the European Parliament and the Council on Guidance for Application of Directive 2003/86/EC on the Right to Family Reunification, com(2014) 210 final, 3 April 2014, 24. In this regard, the Commission further noted that: ‘the humanitarian protection needs of persons benefiting from subsidiary protection do not differ from those of refugees, and [it] encourages [Member States] to adopt rules that grant similar rights to refugees and beneficiaries of […] subsidiary protection. The convergence of both protection statuses is also confirmed in the recast Qualification Directive 2011/95/EU as part of the “eu Asylum Package”. In any case, even when a situation is not covered by European Union law, [Member States] are still obliged to respect Article 8 and 14 [of the European Convention on Human Rights]’.: ibid 24–25 [internal references omitted]. See Article 28 of the 1951 Geneva Convention, as well as its Annex. See also in this sense European Commission, Commission Staff Working Document Accompanying the Proposal for a Directive of the European Parliament and of the Council on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Beneficiaries of International Protection and the Content of the Protection Granted, Impact Assessment, sec(2009) 1373 final, 21 October 2009, 39–40 (Qualification Directive, Impact Assessment) where the Commission considered that uniformisation should only concern differences in benefits that were not objectively justified, and not those ‘linked to the different grounds on which the statuses are granted and [those due to] their different historical and legal origins (regarding for instance, the type of travel documents to be issued or the grounds of exclusion)[…]’.

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Directive has nonetheless succeeded in approximating their right to travel documents with that of refugees. Hence, in contrast to the 2004 Directive, the obligation to issue travel documents to subsidiary protection beneficiaries is not anymore conditioned by the existence of serious humanitarian reasons that would require their presence in another State.26 With such a modification, the Recast Directive ensures both international protection beneficiaries a right to travel documents under similar conditions, that is, ‘unless compelling reasons of national security or public order otherwise require’.27 The only remaining difference is that, to be entitled to such travel documents, subsidiary protection beneficiaries have to be unable to obtain a national passport – a condition not required for refugees. As it might be the case for most subsidiary protection beneficiaries, this requirement should however not be restrictively interpreted by Member States so as to effectively limit their right to travel documents. In the words of the unhcr, ‘Member States should […] not put too high a burden of proof for the impossibility to obtain a national passport’.28 The issuance of travel documents is indeed important for any protection beneficiary, be it at least for its symbolic value, as it is one of the basic tenets of international refugee law.29 Third, with regard to access to employment, its uniformisation for both ­protection beneficiaries constitutes the main added-value of the 2011 Recast Qualification Directive. Under the 2004 Directive, access to (self-)employment and employment-related activities for subsidiary protection beneficiaries was carefully framed in order to lessen Member States’ level of commitment. On the one hand, their access to employment was conditioned by a quite vague optional clause: Member States were allowed to take into account the situation 26

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Article 25(2) of the 2004 Qualification Directive indeed prescribed that: ‘Member States shall issue to beneficiaries of subsidiary protection status who are unable to obtain a national passport, documents which enable them to travel, at least when serious humanitarian reasons arise that require their presence in another State, unless compelling reasons of national security or public order otherwise require’. This requirement seems to be taken verbatim from the wording of Article 28(1) of the 1951 Geneva Convention. unhcr, unhcr Annotated Comments on the ec 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 (oj L 304/12 of 30.9.2004) (unhcr 2005) 39. Concerning the passport named after the visionary Fridtjof Nansen, see the Special Issue: Fridtjof Nansen and the International Protection of Refugees (2003) 22(1) rsq, and in particular O. Hieronymi, ‘The Nansen Passport: A Tool of Freedom of Movement and of Protection’, 36–47.

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of their labour market, including prioritisation mechanisms.30 On the other hand, their access to employment-related activities – such as educational opportunities and vocational training – was regulated by conditions decided by Member States.31 These two restrictions have been removed by the Recast Directive with its new Article 26 now equally applying to both international protection beneficiaries. Hence, subsidiary protection beneficiaries’ engagement in employed and self-employed activities is only subject ‘to rules generally applicable to the profession and to the public service’.32 They further benefit from access to employment-related activities ‘under equivalent conditions as nationals’.33

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See Article 26(3) of the 2004 Directive which provided that: ‘the situation of the labour market in the Member States may be taken into account, including for possible prioritisation of access to employment for a limited period of time to be determined in accordance with national law. Member States shall ensure that the beneficiary of subsidiary protection status has access to a post for which the beneficiary has received an offer in accordance with national rules on prioritisation in the labour market’. Article 26(4) of the 2004 Qualification Directive. Article 26(1) of the 2011 Recast Qualification Directive. It is noteworthy that arguments of exclusive national competence and unlimited domestic discretion were raised during the negotiations on the new provision on employment but they appear to have had no impact on the final outcome. See in particular: Outcome of Proceedings of the Asylum Working Party (Meetings on 24 February 2010), eu Doc. 6580/10 asile 15, 8 March 2010, 42, note 37; Outcome of Proceedings of the Asylum Working Party (Meetings on 6 May 2010), eu Doc. 9539/10 asile 39, 10 June 2010, 40, note 37; Outcome of Proceedings of the Asylum Working Party (Meetings on 20–21 October 2010), eu Doc. 15303/10 asile 83, 25 October 2010, 50, note 29. Article 26(2) of the 2011 Recast Qualification Directive. It is noteworthy that the Recast Directive also further details the content of employment-related activities for both refugees and subsidiary protection beneficiaries, which includes ‘training courses for upgrad­ing skills’ and ‘counselling services afforded by employment offices’. The Commission suggested covering as well the maintenance of grants and loans and of the possibility to work and to study part-time (European Commission, Proposal, Recast Qualification Directive (n 12) 37–38). These additional elements were however rejected by some States, which stressed that it would place international protection beneficiaries in a more favourable position than that enjoyed by nationals. See: Outcome of Proceedings of the Asylum Working Party (Meetings on 14 December 2009 and 12–13 January 2010), eu Doc. 5463/10 asile 1, 25 January 2010, 39, note 32; Outcome of Proceedings of the Asylum Working Party (6580/10 asile 15) (n 32) 42, note 37; Outcome of Proceedings of the Asylum Working Party (9539/10 asile 39) (n 32) 40, note 37; Note from the Presidency to the Asylum Working Party, eu Doc. 8569/10 asile 34, 14 April 2010, 38. The specifications finally adopted in the Recast Directive are nonetheless welcome since they often secure effective access to

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Fourth, beneficiaries of subsidiary protection now enjoy full access to healthcare34 provided that they meet the same eligibility criteria as nationals of the asylum Member State.35 This contrasts with the 2004 Directive which entitled Member States to limit such access to core benefits for subsidiary protection beneficiaries.36 Uniform treatment in matters of healthcare was one of the controversial issues during the recast of the Directive. Some Member States raised concerns that suppressing this optional clause would increase associated costs. Others however supported a uniform access to health care pinpointing that, in practice, only a few Member States were limiting access to core benefits for subsidiary protection beneficiaries.37 In the end, the latter argument seems to have

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employment. See Outcome of Proceedings of the Asylum Working Party (meetings on 19 July 2010), eu Doc. 12447/10 asile 56, 26 July 2010, 44, note 40. In the case of those with special needs, they shall be granted adequate healthcare which now explicitly includes treatment of mental disorders (Article 30(2) of the 2011 Recast Qualification Directive). The Commission initially suggested mentioning mental health only, a position which was supported by the Committee on Civil Liberties, Justice and Home Affairs of the European Parliament. But following the Presidency compromise of April 2010 and subsequent negotiations, the more restrictive notion of mental disorders was eventually chosen. See Outcome of Proceedings of the Asylum Working Party (5463/10 asile 1) (n 33) 43, note 41; Outcome of Proceedings of the Asylum Working Party (6580/10 asile 15) (n 32) 46, note 48; Note from the Presidency to the Asylum Working Party (8569/10 asile 34) (n 33) 40; Note from Presidency to Permanent Representatives Committee (Part ii), Examination of Draft Compromise Text, eu Doc. 11977/10 asile 49, 24 June 2010, Annex I (compromise package following the sixth trialogue), 103 (Note from Presidency to Permanent Represen­tatives Committee (Part ii), Examination of Draft Compromise Text). Article 30(1) of the 2011 Recast Qualification Directive. Article 29 of the 2004 Qualification Directive: ‘1. Member States shall ensure that beneficiaries of refugee and subsidiary protection status have access to health care under the same eligibility conditions as nationals of the Member State that has granted such ­statuses. 2. By exception to the general rule laid down in paragraph 1, Member States may limit health care granted to beneficiaries of subsidiary protection to core benefits which will then be provided at the same levels and under the same eligibility conditions as nationals. […]’. On these arguments, see in particular: Outcome of Proceedings of the Asylum Working Party (5463/10 asile 1) (n 33) 43, note 41; Outcome of Proceedings of the Asylum Working Party (6580/10 asile 15) (n 32) 46, note 48; Outcome of Proceedings of the Asylum Working Party (12447/10 asile 56) (n 33) 48, note 49; Outcome of Proceedings of the Asylum Working Party (meetings on 30 September 2010), eu Doc. 14331/10 asile 69, 12 October 2010, 52, note 32. These arguments are similar to those raised in the context of social welfare (see below Part 3.3). However, in contrast to health care, the Recast Directive maintains a differentiation between refugees and subsidiary protection beneficiaries in terms of social welfare. It is

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taken precedence over the former as the Recast Directive has simply deleted the possibility for Member States to restrict health care to core benefits for subsidiary protection beneficiaries.38 Fifth and finally, as regards access to integration facilities, the Recast Directive requires Member States to ‘ensure access to integration programmes which they consider to be adequate so as to take into account the specific needs of beneficiaries of refugee status or of subsidiary protection status’.39 Subsidiary protection beneficiaries’ access to integration programmes is thus not anymore left to the discretion of Member States as was the case under the 2004 Directive.40 In the light of these amended provisions, it is clear that the Recast Qualifi­ cation Directive has secured uniformisation of the two protection statuses by restricting the discretion initially granted to Member States to limit the rights and benefits of subsidiary protection beneficiaries. It has also enhanced the situation of both protection beneficiaries through other amendments.41 For instance, as for refugees, States can no longer decide to ‘reduce the benefits […] granted to a person eligible for subsidiary protection whose […] status has

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however difficult to identify the factors that led to the approximation of health care and not social assistance. Outcome of Proceedings of the Asylum Working Party (6580/10 asile 15) (n 32) 46, note 48; Note from the Presidency to jha Counsellors, eu Doc. 15904/10 asile 91, 9 November 2010, 54, note 36; Note from the Presidency to the Permanent Representatives Committee, eu Doc. 15939/10 asile 92, 22 November 2010, 58, note 36. Article 34 of the 2011 Recast Qualification Directive. Article 33(2) of the 2004 Qualification Directive provided that: ‘Where it is considered appropriate by Member States, beneficiaries of subsidiary protection status shall be granted access to integration programmes’. Uniformisation of statuses in matters of i­ntegration facilities was however quite controversial. Two Presidency compromises successively suggested reintroducing the differentiated treatment between protection beneficiaries and then suppressing it again (Note from the Presidency to the Asylum Working Party (8569/10 asile 34) (n 33) 43; Note from the Presidency to the Asylum Working Party, eu Doc. 11999/10 asile 55, 12 July 2010, 43). The final agreement on this provision was eventually settled late in the negotiations, that is, only in November 2010. See in particular: Note from the Presidency to the Strategic Committee on Immigration, Frontiers and Asylum, eu Doc. 14970/10 asile 78, 19 October 2010, 7 and Revised Note from the Presidency to Permanent Representatives Committee, eu Doc. 15939/1/10 rev 1 asile 92, 23 November 2010, 62–63. See in particular amended Articles 22 (information), 26(2) (employment-related activities), 31(5) and (6) (procedures for tracing unaccompanied minors’ family and continue training of those working with unaccompanied minors), and 32(2) (practice of dispersal and prevention of discrimination in access to accommodation) of the 2011 Recast Qualification Directive.

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been obtained on the basis of activities engaged in for the sole or main purpose of creating the necessary conditions for being recognized as a person eligible for subsidiary protection’.42 The Recast Directive has also introduced a new provision on recognition of qualifications equally applicable to refugees and subsidiary protection beneficiaries with the view to enhance their integration in host Member States.43 Hence, with regard to the content of protection statuses, the Recast Qualifi­ cation Directive has taken up the two objectives declared by the Commission in its 2009 proposal. First, it has adopted ‘higher protection standards’ for both protection beneficiaries by increasing the level of protection conferred upon recognition.44 Second, it has worked towards ‘further harmonisation of protection standards’.45 Indeed, by uniformising most rights and benefits attached to the two protection statuses, the Recast has by the same token facilitated a more harmonized application of the Directive among Member States as they have now less leeway in implementing its provisions.46 However, such uniformisation has not been completely achieved. There remain differentiations in treatment between refugees and subsidiary protection beneficiaries concerning residence permits and social welfare.

42

Article 20(7) of the 2004 Qualification Directive which has been deleted in the 2011 Recast Qualification Directive. For refugees, see Article 20(6) of the 2004 Qualification Directive. 43 According to Article 28 of the 2011 Recast Qualification Directive: ‘1. Member States shall ensure equal treatment between beneficiaries of international protection and nationals in the context of the existing recognition procedures for foreign diplomas, certificates and other evidence of formal qualifications. 2. Member States shall endeavour to facilitate full access for beneficiaries of international protection who cannot provide documentary evidence of their qualifications to appropriate schemes for the assessment, validation and accreditation of their prior learning. Any such measures shall comply with Articles 2(2) and 3(3) of Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications [oj L 255/22, 30 September 2005]’. See also European Commission, Proposal, Recast Qualifi­ cation Directive (n 12) 8–9; and European Commission, Qualification Directive, Impact Assessment (n 25) 12–13. 44 European Commission, Proposal, Recast Qualification Directive (n 12) 6. 45 Ibid. 46 Thereby reducing at the same time secondary movements of asylum-seekers within the eu and thus the ‘costs incurred by ms [Member States], in particular, for the implementation of the Dublin system’: European Commission, Qualification Directive, Impact Assessment (n 25) 42.

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Out of the Uniformisation Equation: Residence Permits and Social Welfare

In contrast to the rights and benefits examined above, the extent to which residence permits and social welfare are granted still depends on the type of protection conferred. The recast of the Qualification Directive has thus had little to no impact on these two benefits which have remained outside the uniform­ isation equation (3.1 and 3.2). The rationale behind their exclusion from the uniformisation process is hard to understand, as the arguments presented fall short of cogent justifications (3.3). 3.1 Residence Permits When it comes to residence permits, the Recast Qualification Directive offers a quite nuanced picture. On the one hand, the length of residence permits is still differentiated between the two forms of international protection. While refugees benefit from residence permits of at least three years,47 residence permits for subsidiary protection beneficiaries remain limited to a minimum of one year, as was the case under the 2004 Directive.48 On the other hand, the Recast Directive has introduced two modifications which enhance the situation of subsidiary protection beneficiaries and their relatives. First, it has extended the duration of their residence permits in case of renewal from a minimum of one year up to at least two years. Hence, after residence permits have been initially granted for one year, subsidiary protection beneficiaries will benefit from two-year renewable permits if they are still  entitled to such a status.49 Second, the Recast Directive has extended the benefit of residence permits to family members of subsidiary protection ­beneficiaries. They are now entitled to residence permits under the same 47 48

49

See Article 24(1) of the 2011 Recast Qualification Directive which reproduces the wording of Article 24(1) of the 2004 Qualification Directive. Article 24(2) of the 2011 Recast Qualification Directive provides that: ‘As soon as possible after international protection has been granted, Member States shall issue to beneficiaries of subsidiary protection status and their family members a renewable residence permit which must be valid for at least 1 year and, in case of renewal, for at least 2 years, unless compelling reasons of national security or public order otherwise require’. Subsidiary protection beneficiaries will not anymore be entitled to such a status in case of change of circumstances in their country of origin (Articles 16 and 19(1) of the 2011 Recast Qualification Directive), if they fall within the exclusion clauses of Article 17 (Article 19(2) and (3)(a)) or if they have been granted subsidiary protection on the basis of ‘misrepresentation or omission of facts’ (Article 19(3)(b)).

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c­ onditions as their relatives who have been granted subsidiary protection in the first place. This has somehow filled the silence of the 2004 Directive which did not prescribe the issuance of residence permits to subsidiary protection family members, in contrast to those of refugees.50 With such half-shade amendments, the recast provision on residence permits remains not as extensive as initially suggested by the eu Commission.51 Its ­proposal was indeed aiming at a full uniformisation of residence permits for refugees and subsidiary protection beneficiaries, entitling both to a ‘residence permit […] valid for at least three years and renewable […]’.52 While some Member States supported such a proposal,53 others opposed placing refugees 50

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The length of residence permits for refugees’ family members is however shorter than for refugees. Their family members are indeed entitled to renewable residence permits that ‘may be valid for less than three years’, and not for a minimum of three years as it is the case for refugees. See Article 24(1) of the 2004 and 2011 Qualification Directives. The Commission’s proposal however retained former Recital 30, now reproduced verbatim in Recital 40 of the Recast Directive, which provides that: ‘Within the limits set out by international obligations, Member States may lay down that the granting of benefits with regard to access to employment, social welfare, healthcare and access to integration facilities requires the prior issue of a residence permit’. While this Recital previously raised concerns (see M.-T. Gil-Bazo, ‘Refugee Status, Subsidiary Protection, and the Right to Be Granted Asylum under ec Law’ (2006) unhcr New Issues in Refugee Research, Research Paper No. 136, 27), the Court of Justice of the European Union (cjeu) has since clarified that it shall not be interpreted as laying down a right for Member States to subject the granting of rights of benefits to the prior issue of a residence permit. As affirmed by the Court, ‘the condition thus imposed [by the Recital] nevertheless refers to processes purely administrative in nature, since the objective of Chapter VII of the directive is to guarantee refugees a minimum level of benefits in all Member States. Moreover, as that recital does not have a corresponding provision among the provisions of the directive, it cannot constitute a legal basis allowing Member States to reduce the benefits guaranteed by that Chapter vii […]’: Case C-373/13 H.T. v Land Baden-Württemberg [2015] not yet published in ECR, para 96. For the Court, these rights and benefits ‘result from the granting of refugee status and not from the issue of the residence permit’ (Ibid para 97). As a result, ‘even without his residence permit, the person concerned remains a refugee and as such remains entitled to the benefits guaranteed by Chapter VII of that directive to every refugee, including protection from refoulement, maintenance of family unity, the right to travel documents, access to employment, education, social welfare, healthcare and accommodation, freedom of movement within the Member State and access to integration facilities.’ (Ibid para 95). Accordingly, the same conclusion applies with regard to subsidiary protection. European Commission, Proposal, Recast Qualification Directive (n 12) 36, Article 24. These Member States were Finland, Luxembourg and the Netherlands. See Note from Presidency to jha Counsellors, eu Doc. 15564/10 asile 86, 29 October 2010, at 48, note 27.

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and subsidiary protection beneficiaries on equal footing in terms of residence permits. This was most notably the position of Austria, the Czech Republic, Germany and France, which requested to maintain the one-year duration for residence permits of subsidiary protection beneficiaries.54 Adoption of the recast provision was eventually secured based on a Presidency’s compromise text which brought the length of residence permits down to at least one year, and two in case of renewal.55

See also, Note from the Presidency to jha Counsellors (15904/10 asile 91) (n 38) 48, note 29; Note from the Presidency to jha Counsellors, eu Doc. 15695/10 asile 88, 19 November 2010, 48, note 30; and Note from the Presidency to the Permanent Representatives Committee (15939/19 asile 92) (n 38) 52, note 29. 54 See Note from Presidency to jha Counsellors (15564/10 asile 86) (n 53) 48, note 27, and all other eu documents quoted in the previous footnote (n 53). 55 Two compromise texts were in fact necessary before reaching agreement among Member States. The first compromise proposed by the then Presidency allowed ‘Member States to limit the duration of the residence permits for beneficiaries of subsidiary protection to 2  years’ (Revised Note from the Presidency to Permanent Representatives Committee (15939/1/10 rev 1 asile 92) (n 40) 3). Still facing the opposition of some delegations, the Presidency presented a second compromise with a one-year duration of residence permits for subsidiary protection beneficiaries. This was the option finally adopted, while the duration of renewed permits was decreased from a minimum three to two years. See Annex to Note from Presidency to jha Counsellors, eu Doc. 6827/11 asile 11, 28 February 2011, 51. See also, Note from Presidency to Permanent Representatives Committee (Part ii), Preparation for the First Informal Trialogue, eu Doc. 6944/11 asile 13, 11 March 2011, 2 [original emphasis]: ‘Given that the European Parliament, with the orientation vote of 1 February, has clarified its position, the Presidency has prepared a new compromise suggestion with a view to establishing a Council position. Building on the compromise text submitted to Coreper in November 2010, the Presidency suggests amending Article 24 by providing for a duration of a residence permit for beneficiaries of subsidiary protection and their family members of at least one year. […] On 3 March, jha Counsellors discussed the Presidency compromise. The result of the discussion, with delegations’ comments in the footnotes, is reflected in the Annex. In the meeting, the reduction of the duration of residence permits for beneficiaries of subsidiary protection received broad support and, in a spirit of compromise, delegations withdrew a significant number of reservations on other outstanding issues’. As for the duration of residence permits in case of renewal, see: Note from Presidency to Permanent Representatives Committee (Part ii), Examination of Draft Compromise Text (11977/11 asile 49) (n 34) 2, paras 6 and 93; and Note from Presidency to Permanent Representatives Committee (Part ii), Examination of Draft Compromise Text, eu Doc. 12337/11 asile 56, 1 July 2011, 56.

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The recast provision on residence permits is thus the result of a compromise between Member States as rightly acknowledged by the European Commissioner for Home Affairs, Cecilia Malmström: As regards […] residence permits, I regret that the compromise retains the possibility of differentiating between refugees and beneficiaries of subsidiary protection. We share that regret. Nevertheless, the deal on residence permits is a step forward because it will be possible to renew it for longer periods, if protection is still needed, than under the present rules.56 The eu Commissioner nonetheless seems to see the glass half full, while some might still perceive it half empty. The compromise reached among Member States has indeed undermined the initial objective of uniformisation and cannot but leave one with a feeling of a missed opportunity. 3.2 Social Welfare Compared to residence permits, one might regret that a more nuanced approach to social welfare did not emerge during the recast of the Directive. The provision on social welfare of the 2004 Qualification Directive (Article 28) has indeed been integrated quasi-verbatim into the 2011 Recast Directive (Article 29). Hence, Member States still have the discretion to ‘limit social assistance granted to beneficiaries of subsidiary protection status to core ­benefits which will then be provided at the same levels and under the same eligibility conditions as nationals’; a possibility not envisioned in the case of refugees.57 This contrasts with the eu Commission’s proposal, which suppressed any such limitation with the view to uniformise access to social welfare for the two protection beneficiaries.58 Although supported by the eu Parliament,59 the 56

‘Speech of Ms Cecilia Malmström’, annexed to Note from General Secretariat of the Council to Delegation, Plenary Session of the European Parliament, 26 October 2011, Report: Jean Lambert (A7-0271/2011) – Qualification and Status of Third Country Nationals or Stateless Persons as Beneficiaries of International Protection, eu Doc. 16235/11 asile 110, 27 October 2011, 4. 57 Article 29(2) of the 2011 Recast Qualification Directive. 58 European Commission, Proposal, Recast Qualification Directive (n 12) 39, Article 29. 59 See Note from Presidency to Permanent Representatives Committee (Part ii), Examination of Draft Compromise Text (11977/10 asile 49) (n 34) Annex I (compromise package following the sixth trialogue), 101–102 (second column). See also S. Peers, ‘The Revised Directive

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uniformisation of social assistance was persistently objected to by Member States and was thus left aside in favour of mere cosmetic changes.60 As a result, the recast provision sticks to the status quo instituted by the 2004 Directive: while refugees benefit from the necessary social assistance,61 subsidiary protection beneficiaries may only be entitled to its core benefits. What this difference in treatment implies in practice is however far from clear. The Recast Directive does indeed not define ‘necessary social assistance’, while its understanding of ‘core benefits’ is of no greater help: With regard to social assistance, the modalities and detail of the provision of core benefits to beneficiaries of subsidiary protection status should be determined by national law. The possibility of limiting such assistance to core benefits is to be understood as covering at least minimum income support, assistance in the case of illness, or pregnancy, and parental assistance, in so far as those benefits are granted to nationals under national law.62 Hence, it is left to Member States to determine the content of such core ben­ efits and, by extension, that of necessary social assistance. Consequently, their content varies from one Member State to another, with the effect that no

60

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on Refugee and Subsidiary Protection Status’ (2011) Statewatch Analysis No. 141, 6 accessed 31 July 2014. This expression is borrowed from S. Peers, ‘The Revised Directive on Refugee and Subsidiary Protection Status’ (n 59) 6, also used in S. Peers, ‘The Second Phase of the Common European Asylum System – A Brave New World or Lipstick on a Pig?’ (2013) Statewatch Analysis No. 220, 16 accessed 31 July 2014, and taken up in V. Chetail and G. Ruiz, ‘Asylum and Immigration’ (2013) 5 ejhr 875. The only modification introduced by Article 29(2) of the 2011 Recast Qualification Directive is merely a change in terminology. The possibility for Member States to limit social assistance to core benefits for subsidiary protection beneficiaries is indeed not anymore qualified as an ‘exception’ to the general rule of access to social welfare as in Article 28(2) of the 2004 Directive, but as a ‘derogation’. This does however not seem to have any impact on the substance of the paragraph as illustrated by the French version of the provision which was left unaltered because it already used the term ‘derogation’ in the 2004 Directive (‘par dérogation à la règle générale énoncée au paragraphe 1, les Etats membres peuvent limiter aux prestations essentielles l’assistance sociale accordée aux bénéficiaires de la protection subsidiaire, ces prestations essentielles étant servies au niveau et selon les conditions d’accès qui sont applicables à leurs propres ressortissants’). Article 29(1) of the 2011 Recast Qualification Directive. Recital 45 of the 2011 Recast Qualification Directive.

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c­ onsensual definition exists.63 Their very terminology may however indicate that the difference between these two notions is not as far reaching as first expected. The term ‘necessary’ already entails some form of limitation, the content of which might well overlap with that of core benefits. This is confirmed to some extent by the 2007 Report on the Qualification Directive of the Odysseus Network which noted that ‘a number of the benefits mentioned as “core” benefits are equally mentioned by national rapporteurs when outlining the “necessary social assistance”’.64 If these two notions collide to a certain extent, the question nonetheless remains as to why the Recast Directive has expressly maintained such a ­differentiation in access to social welfare between the two beneficiaries of international protection. The response is to be found in the justifications put forward by Member States during the drafting of the Recast Directive which greatly echo those advanced in connection to the different lengths of residence permits. 3.3 The Justifications for the Differential Treatment in Question While most benefits of subsidiary protection beneficiaries have been aligned with those of refugees, the Recast Qualification Directive has thus retained the idea that these two beneficiaries of international protection had to be treated differently, be it at least with regard to residence permits and social welfare. As apparent from its Recital 39, the rule has been one of uniformisation while the 63

64

The Odysseus report on the transposition of the 2004 Qualification Directive underlined that ‘it has proven quite challenging to define the meaning of “necessary social assistance” as regards the Member State in question’. It reiterated the same conclusion regarding the notion of ‘core benefits’. See Odysseus Academic Network, Directive 2004/83/EC Qualifi­ cation Directive: Synthesis Report – Study on the ‘Conformity Checking of the Transposition by Member States on 10 ec Directives in the Sector of Asylum and Immigration’ done for dg  jls of the European Commission (2007) 18 and 76. See further the table made by the Odysseus to summarise the different forms necessary social assistance can take in eu Member States and which may cover: financial allowances, housing, clothing, assistance in job-seeking, health insurance, other insurances, language courses, access to social system, pre-retirement allowance, old age pension, blind pension, parental benefit, widow(er)’s pension, disabled-benefits, carer’s allowance, other allowances to cover basic needs and other social services such as home assistance (ibid 111–112). For the few States that have limited social assistance to core benefits for subsidiary protection beneficiaries, the Odysseus reports that these ‘include, inter alia, basic accommodation, adequate food, pocket money, medical examination, health care and health insurance, nursing care, provision of counseling and social support, certain transportation costs including related to schooling attendance, clothing (in kind or in cash)’ (ibid 113). Ibid 114.

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exception allows differentiation provided that the latter is ‘necessary and objectively justified’. The question thus remains whether the differentiated access to residence permits and social welfare is indeed grounded on any necessary and objective justification. From the travaux préparatoires of the Recast Directive, two main reasons appear to have motivated Member States in maintaining such differentiations: the costs associated with a complete uniformisation of international protection statuses and the more temporary nature of subsidiary protection. First, Member States apparently raised concerns with regard to the costs entailed by a full uniformisation of protection statuses. As underlined by the then Presidency, While giving their support to approximation in general, a number of delegations have also nevertheless raised concerns on approximating specific rights in specific fields: access to employment, social welfare, health care and residence permits. The concerns of these delegations relate in particular to the possible costs involved.65 That such a cost consideration has been decisive in differentiating between refugees and subsidiary protection beneficiaries for residence permits and social welfare is however questionable. The drafting history of the Recast Directive provides no other indication in this sense or support for this justification. On the contrary, and as noted by some Member States, ‘in practice approximation [could have led] to cost savings’.66 This is particularly obvious concerning residence permits. As the Com­ mission demonstrated in its 2009 Impact Assessment, uniformising their validity on the basis of three years for both statuses would have reduced the ‘administrative and financial costs associated with the renewal of residence permits for the 12 [Member States]…which currently grant [subsidiary protection beneficiaries] permits of a shorter duration’.67 Indeed, longer residence permits for subsidiary protection beneficiaries would have required less frequent reassessments of continuing protection needs.68 Moreover, the issuance 65

Revised Note from the Presidency to Permanent Representatives Committee (15939/1/10 rev 1 asile 92) (n 40) 3. 66 Ibid. 67 European Commission, Qualification Directive, Impact Assessment (n 25) 49. These 12 Member States are: Austria, Belgium, the Czech Republic, Cyprus, Estonia, Finland, France, Lithuania, Luxembourg, Poland, Romania and Slovakia. 68 Ibid.

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of residence permits of the same duration for both statuses would have permitted a mainstreamed – thus less expensive – procedure in Member States.69 Evaluating the costs associated with the uniformisation of social assistance for both types of protection beneficiaries is however more difficult. As underlined by the Commission, no precise data are available at the national level.70 It is therefore impossible to accurately and objectively estimate the financial impact that an approximation of such benefits would have had. Nevertheless, one can assume that the cost increase associated with the suppression of the core benefits’ limitation for subsidiary protection beneficiaries would have been quite relative. Indeed, at the eu level, only a handful of Member States makes effective use of such a limitation. According to the Commission, in 2009, this was the case of only four of them, namely Germany, Luxembourg, Latvia, and Portugal.71 Moreover, even for these specific Member States, it can be expected that the increase in costs would have been minimal. As examined above, the two notions of ‘necessary social assistance’ and ‘its core benefits’ give rise in practice to similar – if not identical – entitlements.72 It can thus be presumed that both entail comparable costs for the host country. By 69 Ibid. 70 Ibid 16: ‘[…] there is no information available on the overall costs of hosting beneficiaries of protection. Different rights, such as access to education, recognition of qualifications, social welfare or employment support, are granted on the basis of individual needs and [Member States] do not segregate statistics on the basis of such criteria’. See also M. Garlick, ‘Asylum-Seekers and People in Need of International Protection’ in E. Guild, S. Carrera and K. Eisele (eds), Social Benefits and Migration: A Contested Relationship and Policy Challenge in the eu (Centre for European Policy Studies 2013) 69–70. 71 European Commission, Qualification Directive, Impact Assessment (n 25) 46. According to a 2010 report on the Directive, the Commission further listed Slovakia among the Member States limiting access of subsidiary protection beneficiaries to social assistance to its core benefits (European Commission, Report from the Commission to the European Parliament and the Council on the Application of 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, com(2010) 314 final, 16 June 2010, 14). The Commission further noted that, in Lithuania, subsidiary protection beneficiaries had simply no access to social welfare (Ibid). See also Garlick, ‘Asylum-Seekers and People in Need of International Protection’ (n 70) 71. Unsurprisingly, these Member States coincide to a certain extent with those who have objected uniformising access to social welfare for both protection beneficiaries (see Note from the Presidency to jha Counsellors (15904/10 asile 91) (n 38), 53, note 33; Outcome of Proceedings of the Asylum Working Party (15303/10 asile 83) (n 32) 54, note 33; Note from Presidency to jha Counsellors (15564/10 asile 86) (n 53) 54, note 33. 72 See our analysis in Part 3.2 above.

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extension, suppressing the limitation of social welfare to its core benefits would not have increased substantially the financial burden on these Member States. Overall, the cost argument does not therefore appear as a necessary and objective justification for maintaining a differential treatment between refugees and subsidiary protection beneficiaries. It is indeed unfounded because the approximation of the duration of residence permits would have rather led to costs savings and that of social welfare would have been of a limited financial impact. Quite ironically the second justification invoked by Member States for maintaining such differences in treatment questions the very premise on which the recast was undertaken: contrary to the Commission’s claims, subsidiary protection would remain of a more temporary nature than the refugee status. Under such logic, their residence permits should be of a shorter duration and their access to social assistance more limited.73 This position was clearly underscored by the then Presidency: Some delegations continue to oppose such approximation arguing that there is an essential difference between the two statuses. They consider protection granted to refugees to be of a (semi) permanent nature, whereas protection granted to beneficiaries of subsidiary protection should be regarded as of a more temporary nature.74 Such an argument goes to the heart of the definition of subsidiary protection as it implies that the harms risked upon return would justify protection of a shorter duration than persecution and the refugee status. However, a closer examination of the notions of persecution and serious harms quite tellingly defeats this assumption. While the Geneva Convention does not define persecution, it has become conventional wisdom to interpret this notion on the basis of international human rights law.75 The Qualification Directive itself provides that acts of 73

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As noted by the Odysseus Network, the limited duration of residence permits might also impact on the scope of social assistance granted to beneficiaries of subsidiary protection: ‘Here the problem seems to be that some Member States provide beneficiaries of subsidiary protection status with temporary residence permits only, which may not always be enough to fully access important segments of qd [Qualification Directive] rights, e.g. the social welfare system’.: Odysseus Academic Network (n 63) 77. Revised Note from the Presidency to Permanent Representatives Committee (15939/1/10 rev 1 asile 92) (n 40) 3. See in this regard the enlightening analysis of V. Chetail, ‘Are Refugee Rights Human Rights? An Unorthodox Questioning of the Relations between Refugee Law and Human Rights Law’ in R. Rubio-Marín (ed), Human Rights and Immigration (oup 2014) 26–27.

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­ ersecution consist of severe violations of human rights, especially those p acknowledged as non-derogable by the echr.76 The serious harms justifying subsidiary protection are likewise grounded on international human rights law.77 Already in 1998 when discussing the creation of an eu subsidiary protection, it was made clear that such a status had to build upon Member States’ international obligations,78 in particular Article 3 echr interpreted by the European Court of Human Rights (ECtHR) as to prohibit returning someone to torture or other ill-treatments.79 As a result, the serious harms of Article 15 are all manifestations of the principle of nonrefoulement, namely violations of human rights to which return is proscribed. This quite obviously holds true for Article 15(b) concerning risks of torture or inhuman or degrading treatment, but also for Article 15(a) on death penalty.80 76

Article 9(1) of the 2011 Recast Qualification Directive which provides in its entirety that: ‘In order to be regarded as an act of persecution within the meaning of Article 1(A) of the Geneva Convention, an act must: (a) be sufficiently serious by its nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention of the Protection of Human Rights and Fundamental Freedoms; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in point (a)’. This wording is taken quasi verbatim from the 2004 Qualification Directive (Article 9). 77 This was made clear by Recital 25 of the 2004 Qualification Directive which provides that: ‘It is necessary to introduce criteria on the basis of which applicants for international protection are to be recognised as eligible for subsidiary protection. Those criteria should  be drawn from international obligations under human rights instruments and practices existing in Member States’. See similarly Recital 34 of the 2011 Recast Qualification Directive. 78 See Note from the General Secretariat of the Council to Asylum and Migration Working Parties, Study on International Instruments Relevant to Subsidiary Protection, eu Doc. 10175/98 asim 178 asile 6 migr 6, 13 July 1998. 79 Note from the Presidency to the Asylum Working Party, Discussion Paper on Subsidiary Protection (13167/99 asile 41) (n 3) 2; Note from the Presidency to Asylum/Migration Working Group (7779/97 asim 89) (n 3). 80 Article 15(a) reflects the prohibition of death penalty as endorsed by Protocols No. 6 and 13 of the echr. See Presidency Note to the Strategic Committee on Immigration, Frontiers and Asylum, eu Doc. 12148/02 asile 43, 20 September 2002, 5 referring to Protocol No. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Concerning the Abolition of Death Penalty, ets No. 114, 28 April 1983 (entry into force 1 March 1985); and Protocol No. 13 to the echr, Concerning the Abolition of Death Penalty in all Circumstances, ets No. 187, 3 May 2002 (entry into force 1 July 2003). For ECtHR case-law on non-refoulement to death penalty, see most notably Al-Saadoon and Mufdhi v the United Kingdom Appl no 61498/08 (ECtHR, 2 March 2010) para 120.

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Although the human rights foundation of Article 15(c) concerning threat from indiscriminate violence may be less evident,81 it was recently confirmed by the ECtHR in the case of Sufi and Elmi v the United Kingdom.82 Given the identical nature of the risk they fear – i.e., serious violations of human rights –,83 beneficiaries of both types of international protection have 81

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This serious harm has long been interpreted by national courts and commentators on the basis of international humanitarian law rather than international human rights law. Such an understanding was first put into question by the cjeu in its Elgafaji case, and further discarded in its Diakité ruling (Case C-465/07 Meki Elgafaji and Noor Elgafaji v Staatssecretaris van Justitie [2009] ecr 2009 I-00921 and Case C-285/12 Aboubacar Diakité v Commissaire général aux réfugiés et aux apatrides [2014] not yet published in ecr). For a detailed account on Article 15(c) and its ensuing interpretation, see C. Bauloz, ‘The (Mis)Use of International Humanitarian Law under Article 15(c) of the Qualification Directive’ in D.J. Cantor and J.-F. Durieux (eds), Refuge from Inhumanity? War Refugees and International Humanitarian Law (Martinus Nijhoff Publishers 2014) 247–269; and C. Bauloz, ‘The Definition of Internal Armed Conflict in Asylum Law: The 2014 Diakité Judgment of the eu Court of Justice’ (2014) 12(4) jicj 835–846. Sufi and Elmi v the United Kingdom Appl nos 8319/07 and 11449/07 (ECtHR, 28 June 2011) para 226: ‘The jurisdiction of this Court is limited to the interpretation of the Convention and it would not, therefore, be appropriate for it to express any views on the ambit and scope of article 15(c) of the Qualification Direction [sic]. However, based on the ecj’s interpretation in Elgafaji, the Court is not persuaded that Article 3 of the Convention, as interpreted in na, does not offer comparable protection to that afforded under the Directive. In particular, it notes that the threshold set by both provisions may, in exceptional circumstances, be attained in consequence of a situation of general violence of such intensity that any person being returned to the region in question would be at risk simply on account of their presence there’. Hence, a ‘serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict’ might constitute a treatment falling under Article 3 echr and to which return is prohibited. See the conclusion reached by the ECtHR concerning expulsion to Somalia (ibid para 250): ‘the violence in Mogadishu is of such a level of intensity that anyone in the city, except possibly those who are exceptionally well-connected to “powerful actors”, would be at risk of treatment prohibited by Article 3 of the Convention’. As a result, both notions substantially overlap. This is particularly striking concerning death penalty or execution (Article 15(a)), which has thus rarely led to the granting of subsidiary protection. The only few protection claims recognised on such ground have been granted by France because of a restrictive interpretation of the refugee definition and its persecution grounds. See French Commission des recours des réfugiés: Mme Anvari ép. Rastin Appl no 457366, 4 April 2007 and Mme E. ép. G. Appl no 574329, 5 January 2007. See also, L. Dufour, Part ii(B): France – The 1951 Geneva Convention and Subsidiary Protection: Uncertain Boundaries (2006) Working Party Conference Research Paper, International Association of Refugee Law Judges Working Party 7th World Conference,

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similar protection needs. From that perspective, it is difficult to see why the serious harms of Article 15 should warrant a shorter protection than persecution does in the host country. However the need for shorter protection might nonetheless be the case for Article 15(c). Compared to the others, this serious harm is rather situational as it revolves on a certain degree of indiscriminate violence in an armed conflict situation, which will sooner or later decrease. Nowadays, armed conflicts nonetheless tend to be more and more protracted – not to say never-ending – as is the case in Afghanistan, Iraq, Somalia or Syria. In any case, the alleged temporary nature of the risk justifying subsidiary protection should not impact the duration of residence permits. Whatever their length, Member States indeed retain their obligation to revoke, end or refuse to renew subsidiary protection status in case of change of circumstances in the country of origin.84 If an individual ceases to be eligible, he/she does not then benefit anymore from the rights laid down in Chapter vii of the Directive, including from the benefit of a residence permit. There is therefore no need to reduce the duration of residence permits, the cessation clause being sufficient to accommodate cases of a more temporary nature. In sum, the argument regarding duration is not more objectively justified than the one concerning the costs associated with a complete uniformisation of statuses. Neither appears as a cogent reason for maintaining differences in treatment between the two types of international protection beneficiaries. It is thus hard to understand why subsidiary protection beneficiaries continue to benefit from more precarious residence permits and more limited access to social assistance compared to refugees.

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Mexico, 1–3. Ultimately, it is thus the discriminatory ground of persecution which determines which form of international protection is to be granted: if the human rights violation feared upon return is for reasons of race, religion, nationality, membership of a particular social group or political opinion, refugee status will be conferred. Article 19(1) of the 2011 Recast Qualification Directive indeed provides that: ‘Concerning applications for international protection filed after the entry into force of Directive 2004/83/EC, Member States shall revoke, end or refuse to renew subsidiary protection status of a third-country national or a stateless person granted by a governmental, administrative, judicial or quasi-judicial body if he or she has ceased to be eligible for subsidiary protection in accordance with Article 16’. Article 16(1) on cessation of subsidiary protection status provides that: ‘A third-country national or a stateless person shall cease to be eligible for subsidiary protection when the circumstances which led to the granting of subsidiary protection status have ceased to exist or have changed to such a degree that protection is no longer required’. See in this sense, unhcr, unhcr’s Observations on the European Commission’s Proposal for a Council Directive (n 11) 17.

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4 Conclusion Subsidiary protection beneficiaries are undoubtedly better off since the 2011 Recast Qualification Directive, for the latter has aligned to a great extent the content of their protection with that of refugees. Overall, out of the seven rights and benefits that differentiated between the two protection beneficiaries under the 2004 Directive, five have been amended and are now identically granted to refugees and subsidiary protection beneficiaries. But this positive quantitative picture should not presume on the qualitative impact of the recast: the situation of subsidiary protection beneficiaries remains more precarious than that of refugees. In particular, by leaving – albeit only – two benefits out of the uniformisation process, the Recast Directive still limits the prospects for subsidiary protection beneficiaries to integrate in host Member States. As underscored by Madeline V. Garlick, These differentiations, which result in further inequality among people needing protection in the eu, are questionable in principle and potentially problematic in their impact on the integration of [subsidiary protection beneficiaries] in the eu.85 Indeed, the short validity of subsidiary protection beneficiaries’ residence permits weakens their potential for integration in the host society. This obstacle was expressly pointed out by the eu Parliament during the drafting of the 2004 Qualification Directive: Persons with complementary protection status should be treated in terms of duration of protection in the same way as Refugee Convention refugees bearing in mind that both categories of persons have similar needs and circumstances and that successful integration in the asylum country requires a status that enables persons to develop a sense of longterm perspective for the future.86 Successful integration implies that individuals have some degree of residence security, that is, the assurance that they will be entitled to remain for a certain 85

86

M. Garlick, ‘Inequality for Asylum-Seekers and People Entitled to Protection in the European Union’ in S. Morano-Foadi and M. Malena (eds), Integration for Third-Country Nationals in the European Union: The Equality Challenge (Edward Elgar Publishing 2012) 88. European Parliament (n 12) Amendment 66.

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period of time in the country of refuge.87 Otherwise, they might well consider their stay therein as a parenthesis in their life, a temporary sojourn. With a one-year residence permit – or two in case of renewal –, one may thus doubt that subsidiary protection beneficiaries can have such a sufficiently long-term perspective to successfully integrate in the concerned eu Member State.88 The minimalist approach to social assistance poses another obstacle to the integration of subsidiary beneficiaries, thereby creating the risk of further marginalizing them in the host society. Necessary social assistance is already meant to provide the minimum subsistence level, and limiting this assistance further to core benefits would jeopardize their situation in the host country and hinder their successful integration therein. It is thus regrettable that integration of subsidiary protection beneficiaries has not been fully mainstreamed within the Recast Qualification Directive,89 especially in light of the eu policy promoting integration of third-country 87

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See V. Chetail and C. Bauloz, ‘The European Union and the Challenges of Forced Migration: From Economic Crisis to Protection Crisis?’ (2011) Research Report: European University Institute, Robert Schuman Centre for Advanced Studies, 26. See in this sense, European Commission, Qualification Directive, Impact Assessment (n 25) 27: ‘longer validity of residence permits can be expected to have more positive effects on both social protection and integration’. The Commission further noted that: ‘As a rule, beneficiaries of international protection are expected to reach a satisfactory level of selfsufficiency and integration more or less 2 years following the granting of protection […] it can be assumed that it may take them even longer to reach such a milestone (significantly, in France, the integration period lasts 5 years)’: ibid 50. The need to enhance integration of international protection beneficiaries – including those conferred subsidiary protection – was however underlined by the European Commission in its 2009 Impact Assessment, when it noted with regard to the 2004 Directive that: ‘Moreover, the current standards of the Directive regarding the rights to be granted to beneficiaries of international protection with a view to supporting their integration are also not adequate to ensure effective access to the rights guaranteed by the relevant international instruments in a consistent manner in all Member States. In the same vein, they are not adequate either to achieve the Treaty objective of promoting social cohesion and the integration of legally residing third-country nationals or to give effect to the integration mandate set by the Tampere and the Hague Programmes’: ibid 11. The Commission further acknowledged that: ‘Of relevance in this respect is the emerging European framework on integration. In relation specifically to beneficiaries of international protection, the need has been repeatedly acknowledged for ms [Member States] to promote their social, economic and cultural integration in so far as it contributes to economic and social cohesion, the maintenance and strengthening of which is one of the Community’s fundamental tasks provided for in Articles 2 and 3(1)(k) of the Treaty’: ibid 11–12.

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nationals.90 Integration is furthermore key for them to change their subsidiary protection status one day into that of long-term resident by virtue of the concerned eu Directives.91 Eligibility for long-term resident status indeed requires 90

91

Promoting the integration of third-country nationals residing legally in Member States is set as an objective of the Union by Article 79(4) tfeu. The eu is however not competent to legislate on integration, but ‘may establish measures to provide incentives and support for the action of Member States’. Integration of third-country nationals was already a declared objective of the eu in the Presidency Conclusions at the Tampere European Council (15–16 October 1999, sn 200/99, point 18) and was further supported by initiatives such as the Common Basic Principles on Integration (eu Doc. 14615/04, 19 November 2004), A Common Agenda for Integration – Framework for the Integration of Third-Country Nationals in the European Union (com(2005) 389 final, 1 September 2005) or, more recently, the European Agenda for the Integration of Third-Country Nationals (com(2011) 455 final, 20 July 2011). For further discussion on integration of third-country nationals and the eu policy, see for instance: M. Malena and S. Morano-Foadi, ‘Integration Policy at European Union Level’ in S. Morano-Foadi and M. Malena (eds), Integration for ThirdCountry Nationals in the European Union: The Equality Challenge (Edward Elgar Publishing 2012) 45–67; Y. Pascouau, ‘Mandatory Integration Provisions in ec and eu Member States Law’ in S. Bonjour, A. Rea and D. Jacobs (eds), The Others in Europe (Editions de l’Université de Bruxelles 2011) 37–50; A. Wiesbrock, Legal Migration to the European Union (Martinus Nijhoff Publishers 2010); S. Carrera, In Search of the Perfect Citizen? The Intersection between Integration, Immigration and Nationality in the eu (Martinus Nijhoff Publishers 2009); T. Gross, ‘Integration of Immigrants: The Perspective of European Community Law’ (2005) 7(2) ejml 145–161. Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, oj L 16/44, 23 January 2004 (Long-Term Residents Directive), extended to cover as well international protection beneficiaries (i.e., refugees and subsidiary protection beneficiaries) by the Directive 2011/51/EU of the European Parliament and of the Council of 11 May 2011 amending Council Directive 2003/109/EC to extend its scope to beneficiaries of international protection, oj L 132/1, 19 May 2011. Recital 6 of this last Directive underlines that: ‘The prospect of obtaining long-term resident status in a Member State after a certain time is an important element for the full integration of beneficiaries of international protection in the Member State of residence’. Long-term resident permits indeed entitle third-country nationals to freedom of movement within the eu (Chapter iii of 2003 Long-Term Residents Directive) and to equal treatment with eu citizens in terms of employment, educational and vocational training, recognition of professional diplomas, social security, social assistance and protection, tax benefits, access to good and services, as well as freedom of association and affiliation (Article 11(1)). On the extension of the long-term resident status to international protection beneficiaries, see S. Peers, ‘Extending eu Long-Term Resident Status to Refugees and Persons with Subsidiary Protection Status’ (2010) Statewatch Analysis No. 114, accessed 31 July 2014. For more general discussions on the long-term resident status, refer most notably to: K. Groenendjik, ‘Long-Term Residents’ in

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a continuous residence for a five-year period, economic self-sufficiency and sickness insurance, as well as compliance with integration conditions if requested by Member States.92 The limited benefits of residence permits and social welfare might however preclude subsidiary protection beneficiaries to attain this necessary level of integration.93 Beyond its implications for beneficiaries of subsidiary protection, the partial uniformisation of protection statuses undertaken by the Recast Qualification Directive raises questions of a more systemic nature: can the very idea of hierarchical forms of international protection still be validly maintained? The present analysis has demonstrated that nothing warrants a variance in treatment between refugees and subsidiary protection beneficiaries. The remaining differentiations seem therefore founded on a more principled rejection of assimilating the two forms of international protection. Although not explicitly referred to during the negotiations of the Recast Directive, one might wonder whether the alleged primacy of the Geneva Convention has not played a decisive role in impeding the complete uniformisation of protection statuses. The idea that refugee status should take precedence over subsidiary protection warrants the latter to entail more limited rights and benefits than the former.

92 93

S. Peers, E. Guild, D. Acosta Arcarazo, K. Groenendjik and V. Moreno-Lax (eds), eu Immigration and Asylum Law (Text and Commentary) (2nd revised version, Vol. 2, Martinus Nijhoff Publishers 2012) 287–330; D. Acosta Arcarazo, The Long-Term Residence Status as a Subsidiary Form of eu Citizenship – An Analysis of Directive 2003/109 (Brill 2011); A. Wiesbrock, Legal Migration to the European Union (Martinus Nijhoff Publishers 2010) 371–419; A. Skordas, ‘Immigration and the Market: The Long-Term Residents Directive’ (2006) 13(1) cjel 201–230; S. Boelaert-Suominen, ‘Non-eu Nationals and Council Directive 2003/109/EC on the Status of Third-Country Nationals Who Are Long-Term Residents: Five Paces Forward and Possibly Three Paces Back’ (2005) 42(2) Common Market L Rev 1011–1052; L. Halleskov, ‘The Long-Term Residents Directive: A Fulfillment of the Tampere Objectives of Near-Equality’ (2005) 7(2) ejml 181–201; and S.  Peers, ‘Implementing Equality? The Directive on Long-Term Resident Third-Country Nationals’ (2004) 29(4) Eur L Rev 437–460. See especially Articles 4 and 5 of the 2003 Long-Term Residents Directive. Access to long-term resident permits has nonetheless been eased through the approximation of the other benefits of subsidiary protection status with that of refugee status under the 2011 Recast Qualification Directive. This is most notably the case with regard to the more generous access to employment which now enhances prospects for subsidiary protection beneficiaries to attain the level of economic self-sufficiency required by the LongTerm Residents Directive. See in this respect the criticisms raised before the Recast Qualification Directive by Chetail and Bauloz (n 87) 28–29.

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The only way out of this vicious circle would be for the eu and its Member States to recognize that their initial assumption was flawed: refugee status is not inherently superior to subsidiary protection status. Subsidiary protection is indeed nothing more than the human rights principle of non-refoulement that has been institutionalized as a complementary form of protection within the eu.94 From such an international law perspective, nothing justifies the primacy of refugee status over the human rights principle of non-refoulement and, by extension, subsidiary protection. In contrast to conventional wisdom, the rights and benefits attached to refugee status are not more far reaching than the protection afforded by international human rights law.95 On the contrary, ‘human rights law is not only broader than refugee law with regard to both its personal and material scope, but more fundamentally, the former supplants the latter even when their respective norms overlap’.96 As a result, the refugee and subsidiary protection statuses should have been placed on equal footing, as was recommended by the eu Commission. It would have been more consonant with international law, encapsulating the Recast Directive into the broader context of international human rights law. But it would also have been in line with other regional models which have extended refugee protection to those who are non-returnable.97 Ultimately, and despite the ameliorations brought by the Recast Directive, it seems the eu still has to learn from its regional counterparts with the view to fully mainstream a human rights approach to international protection. 94 95

See above n 3, 78 and 79. See Chetail (n 75) 39 who notes that the refugee status ‘has been commonly heralded by commentators as establishing the Geneva Convention as the primary source of refugee protection, relegating human rights law to a secondary role’. 96 Ibid. 97 This is the case of the African Union (formerly Organization of the African Unity) with its Convention Governing the Specific Aspects of Refugee Problems in Africa (Article 1(2), 1001 unts 45, 10 September 1969 (entry into force 29 June 1974), as well of Central and South America with its Cartagena Declaration on Refugees (conclusion 3, adopted by the Colloquium on the International Protection on Refugees in Central America, Mexico and Panama, held in Cartagena on 19–22 November 1984). For the list of countries which have incorporated the Cartagena definition of refugee, see http://www.acnur.org/t3/que -hace/proteccion/declaracion-de-cartagena-sobre-los-refugiados/paises-que-incorporan -la-definicion-de-refugiado-establecida-en-la-declaracion-de-cartagena-en-su-legislacion -nacional, accessed 30 November 2015 (in Spanish only).

PART 4 The Reception Conditions Directive

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chapter 10

eu Reception Conditions: A Dignified Standard of Living for Asylum Seekers? Evangelia (Lilian) Tsourdi* 1

Reception Conditions: An Integral Part of the Common European Asylum System

Ensuring a dignified standard of living for asylum seekers has been one of the primary stated aims of the European Union (eu) action in the area of asylum. There are a number of legal and policy reasons for which it was decided that the Common European Asylum System (ceas) should include rules on the reception of asylum applicants. Firstly, prior legal obligations of Member States, namely those arising from the 1951 Refugee Convention,1 stipulate specific action as several of the rights that are enunciated in the Convention concern refugees who are ‘present in the territory’ or ‘lawfully present’.2 Given that a person is a refugee the moment she fulfills the refugee definition and therefore refugee status is declaratory,3 these are two categories to which asylum seekers arguably belong to.4 Further rights accrue to refugees who are ‘lawfully staying’. In the eu context, these rights are accessible only after asylum, and therefore a residence permit on this basis, has been granted. * PhD Candidate, Université libre de Bruxelles (ulb); Research associate, Migration Policy Centre/European University Institute (eui) and Centre Charles De Visscher pour le droit international et européen (CeDIE), Université catholique de Louvain (ucl). Parts of this chapter develop further ideas and arguments expressed in L. Tsourdi, ‘Reception Conditions for Asylum Seekers in the EU: Towards the Prevalence of Human Dignity’ (2015) 29(1) jianl. 1 United Nations Convention Relating to the Status of Refugees, 189 unts 150, 28 July 1951 as amended by the Protocol Relating to the Status of Refugees, 606 unts 267, 31 January 1967(entry into force 22 April 1954) (1951 Refugee Convention). 2 For example Article 31 of the 1951 Refugee Convention on non-penalisation concerns refugees who ‘enter or are present in the territory’ while Article 26 of the 1951 Refugee Convention on freedom of movement concerns refugees who are ‘lawfully in’ the territory. 3 United Nations High Commissioner for Refugees (unhcr), Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, HCR/IP/4/Eng/REV. 1, December 2011, para 28. 4 See J. Hathaway, The Rights of Refugees Under International Law (Cambridge University Press 2005) 171–186.

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Apart from international refugee law, Member States are bound by international and European human rights treaties.5 Several rights and freedoms such as the right to liberty and security,6 the prohibition of torture, inhuman and degrading treatment7 as well as principles such as the primary consideration of the best interests of the child,8 although not specifically addressed to protection seekers, have an impact on their treatment and establish a series of entitlements and guarantees. The European Court of Human Rights (ECtHR) has formulated further ­justification as to why this group merits special treatment. In the case of mss v Belgium and Greece, the Strasbourg Court advanced that asylum seekers on the whole are ‘a particularly underprivileged and vulnerable population group in need of special protection’.9 Although the ‘vulnerable-group’ approach entails risks,10 it has the advantage of explicitly recognising the specific situation in which asylum seekers find themselves. Due to their traumatic experience of flight, the fact that they are unfamiliar with the language and legislative frameworks of the country of asylum, and their lack of economic means, where this is applicable, asylum seekers as a group merit special treatment. To these reasons grounded in Members States’ legal obligations, we should add a further policy rationale for the adoption of standards on the treatment of asylum seekers. The eu seeks to create a common space of protection where ‘[i]ndividuals, regardless of the Member State in which their application for asylum is lodged, are offered an equivalent level of treatment as regards reception conditions’.11 The underlying aim is to prevent, or at least limit, secondary 5

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Among the various instruments we would like to highlight the International Covenant on Civil and Political Rights, 999 unts 171, 16 December 1966 (entry into force 23 March 1976) (iccpr); Convention for the Protection of Human Rights and Fundamental Freedoms, 005 cets 1, 4 November 1950, as amended by Protocol 14, 194 cets 1, 13 May 2004 (entry into force 3 September 1953) (echr); as well as the Convention on the Rights of the Child, 1577 unts 3, 20 November 1989 (entry into force 2 September 1990) (crc). For example as enunciated in Article 9 iccpr and Article 5 echr. For example as enunciated in Article 7 iccpr and Article 3 echr. As enunciated in Article 3 crc. mss v Belgium and Greece Appl no 30696/09 (ECtHR, 21 January 2011) para 251. For a critical assessment of the vulnerable-group concept in the Court’s legal reasoning see L. Peroni and A. Timmer, ‘Vulnerable Groups: The Promise of an Emerging Concept in European Human Rights Convention law’ (2013) 11(4) icon 1056. Peroni and Timmer identify that the Court’s reasoning risks reinforcing the vulnerability of certain groups by essentialising, stigmatising, victimising, and paternalising them. See European Council, The Stockholm Programme – An Open and Secure Europe Serving and Protecting the Citizens, oj C 4 May 2010, para 6.2.

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movements. Harmonisation of the legislation on reception conditions is therefore seen as an important step in attaining the objective that ‘similar cases should be treated alike and result in the same outcome’.12 It is expected that the more this becomes a reality, the less incentives or objective needs there would be for asylum seekers to move between the different Member States. This chapter, firstly, retraces the legislative history and comments on the turbulent negotiations that led to the adoption of the recast eu Directive in June 2013. It then critically analyses selected aspects of the recast Directive’s content and namely: the scope of the instrument; the detention regime; access to the labour market; level of material reception conditions available and, finally, norms governing the reduction or withdrawal of reception conditions.13 The analysis is informed by the latest case-law of the Court of Justice of the eu (cjeu) and that of the European Court of Human Rights (ECtHR), including pending cases. A further section undertakes an overall assessment of the instrument on the basis of three parameters: adherence of the adopted norms with fundamental rights, including the eu Charter of Fundamental Rights (cfr);14 the level of harmonisation achieved by the recast and, finally, the level of coherence between the recast Directive and the other asylum instruments. An ultimate section highlights perspectives that are raised by recent jurisprudence by European Courts and decision-making bodies. 2

Legislative History and Adoption of the Recast Directive

The original legal basis of the European asylum policy was Article 63(1) of the Treaty Establishing the European Community (tec).15 It included ‘minimum standards on the reception of asylum seekers in the Member States’ as one of the measures to be adopted. This concerned formally only applicants for refugee status, although most eu Member States established a single procedure and therefore applied these minimum standards to all applicants. As a result, 12 Ibid. 13 Another important area where there was evolution, was identification and treatment of vulnerable asylum seekers; this issue is addressed in detail in this volume though the contribution of Lyra Jakuleviciene, ‘Vulnerable Persons as a New Sub-Group of Asylum Seekers?’. 14 The eu Charter of Fundamental Rights was solemnly proclaimed by the Parliament, the  Council and the Commission in Nice, on 7 December 2000, and in Strasbourg on 12 December 2007. Its wording has been adapted and published in oj 2010, C 83/389. 15 Consolidated Version of the Treaty Establishing the European Community, oj C 321 E/37 (tec), 29 December 2006.

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the Reception Conditions Directive was adopted in 200316 after 2.5 years of negotiations.17 Some of the thorniest issues during the negotiations of that instrument were: access to employment and to vocational training, the scope of application of the instrument and exceptions to the principle of freedom of movement.18 The 2003 Directive established minimum standards covering different aspects of the rights and treatment of asylum such as material reception conditions, healthcare and access to employment. In its report on the application of the 2003 Directive, the Commission noted that Member States had not lowered their previous standards of assistance to asylum seekers as a result of the adoption of the Directive.19 However, it also stressed that the wide discretion allowed by the 2003 Directive in a number of areas undermined the objective of creating a level playing field in the area of reception conditions.20 These conclusions were also supported by the findings of the 2006 study of the Odysseus Network on the transposition of the Directive which revealed that there were significant divergences in state practice, in particular in the following areas: the scope of application of the instrument ratione personae, the regulation of the issue of detention of  asylum seekers as well as the implementation of provisions in favour of vulnerable asylum seekers.21 As part of the ceas reform, the Commission published its first recast ­proposal in 2008 with two main aims. Firstly, to ensure higher standards of treatment for asylum seekers with regard to reception conditions that would guarantee a dignified standard of living, in line with international law, and secondly, to limit the phenomenon of secondary movements of asylum seekers amongst Member States, to the degree that such movements are generated

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18 19

20 21

Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the  reception of asylum seekers, oj L 31/18, 6 February 2003 (Reception Conditions Directive). The European Commission had presented its proposal in 2001. See European Commission, Proposal for a Council Directive laying down minimum standards on the reception of applicants for asylum in Member States, May 2001. J. Handoll, ‘Reception Conditions of Asylum Seekers’ in P. De Bruycker and C. De Sousa Urbano Dias (eds), The Emergence of a European Asylum Policy (Bruylant 2004) 123–125. European Commission, Report on the application of directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, com(2007) 745 final, at 10 (Commission 2007 rcd Report). Ibid 10–11. Odysseus Academic Network, ‘Comparative overview of the implementation of the Directive 2003/9 of 27 January 2003 laying down minimum standards for the reception of asylum seekers in the eu Member States’ (2006) (Odysseus 2006 rcd Study) 75–77.

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from divergences between national reception policies.22 This legislative instrument was to be adopted under the legislative process of co-decision,23 since the tec stipulated that this was the procedure to be followed for the adoption of all recast asylum instruments.24 Negotiations between the European Parliament and the Council commenced on the basis of the 2008 Commission proposal, and, in May 2009, Parliament adopted its first reading position.25 However, negotiations within the Council soon revealed that there was intense discord on several issues and that it would not be possible to find agreement on the basis of the text proposed. Some of the main ‘sticking points’ were: access to the labour market,26 the obligation to establish procedures to identify persons with special reception needs,27 and the level of material reception conditions to be made available.28 The Council never adopted its first reading position on this text. In the meantime, the legal basis of the ceas was reformed with the formal entry into force of the Lisbon Treaty. Article 78 of the Treaty on the Functioning of the European Union (tfeu) calls for the development of ‘[a] common policy 22

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European Commission, Proposal for a directive of the European Parliament and of the Council laying down minimum standards for the reception of asylum seekers, com (2008) 815 final, 2008, Explanatory Memorandum, 4 (2008 rcd Commission Proposal). Article 294 of the Treaty on the Functioning of the eu contains the consecutive steps of the co-decision procedure, now also termed as ‘the ordinary legislative procedure’. These rules were formerly contained in Article 251 tec. The Treaty of Nice which entered into force on 1st February 2003, had amended Article 67 of tec adding a fifth paragraph which stated the following: ‘by derogation from paragraph 1, the Council shall adopt, in accordance with the procedure referred to in Article 251 the co-decision procedure: the measures provided for in Article 63(1) and (2)(a) measures of the asylum policy provided that the Council has previously adopted, in accordance with paragraph 1 of this Article, Community legislation defining the common rules and basic principles governing these issues’. European Parliament, European Parliament legislative resolution on the proposal for a directive of the European Parliament and of the Council laying down minimum standards for the reception of asylum seekers (recast), com(2008)0815 – C6-0477/2008 – 2008/ 0244(cod), May 2009 (2009 ep position). See 2008 rcd Commission Proposal (n 22), Article 15(1) which stated that: ‘member States shall ensure that applicants have access to the labour market no later than 6 months ­following the date when the application for international protection was lodged’. See 2008 rcd Commission Proposal (n 22), Article 21(2). See 2008 rcd Commission Proposal (n 22), Article 17(5) which stated that: ‘(in) calculating the amount of assistance to be granted to asylum seekers Member States shall ensure that the total value of material reception conditions to be made available to asylum seekers is equivalent to the amount of social assistance granted to nationals requiring such assistance. Any differences in this respect shall be duly justified’.

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on asylum, subsidiary protection and temporary protection’29 as well as for the adoption of measures comprising of ‘[s]tandards concerning the conditions for the reception of applicants for asylum or subsidiary protection’.30 The overall level of ambition is indeed higher, as the Treaty speaks of the development of a ‘common’ policy. We note, however, that despite the fact that the Treaty no longer stipulates the adoption of ‘minimum’ standards on reception conditions, it does not call either for the adoption of ‘common’ standards in this area.31 Instead, the Union is expected to adopt ‘standards’ on reception conditions. This could be understood as recognition by the drafters that although the standards established should no longer be ‘minimum’, at the same time, harmonisation in this area of the asylum policy is to result in comparable rather than common standards.32 In order to overcome the political impasse, the Commission launched an amended recast proposal on June 2011.33 Therein, the Commission explained that the text introduces clearer concepts and more simplified rules and grants Member States more flexibility in integrating them into their national legal systems.34 How­ ever, it stressed that the amended proposal was based on the same fundamental principles.35 This approach is exemplified by the provisions governing the detention regime for asylum seekers. Although the amended recast proposal ­continues to regulate in a detailed manner detention conditions, it introduced the possibility for Member States to derogate from some of the rules ‘in duly justified cases and for a reasonable period which shall be as short as possible’.36 With the introduction of this new text, negotiations between the two colegislators resumed and, in the course of 2012, a series of informal trialogues37 29

Treaty on the Functioning of the European Union (tfeu) oj 2010, C 83/47, Article 78(1) (emphasis added). 30 tfeu Article 78(2)(f). 31 See in comparison tfeu Article 78(2)(c) which stipulates the adoption of ‘common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status’ (emphasis added). 32 L. Tsourdi, ‘Reception Conditions for Asylum Seekers in the eu: Towards the Prevalence of Human Dignity’ (2015) 29(1) jianl 13. 33 European Commission, Amended proposal for a directive of the European Parliament and of the Council laying down standards for the reception of asylum seekers (Recast), com(2011) 320 final, 1 June 2011 (2011 rcd Amended Commission Proposal). 34 Ibid, Explanatory Memorandum, 3. 35 Ibid. 36 See 2011 rcd Amended Commission Proposal (n 33), Article 10(6). 37 Trialogues are tripartite meetings between the European Parliament, the Council and the Commission during which a common position is sought between the amendments of the

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took place that resulted in political compromise in September 2012.38 For technical reasons, involving the timing of the finalisation of the pending negotiations of the other asylum instruments, the text was officially adopted and published in June 2013.39 Member States bound by the recast Directive should have transposed it by July 2015.40 3

Critical Analysis of Selected Issues in the Recast Directive

This section focuses on six aspects of the recast Reception Conditions Directive. These are areas where the recast brought significant changes compared to the text of the 2003 Directive. 3.1 Scope of Application The implementation of the 2003 Directive revealed discord around both its territorial scope, with a number of Member States contesting, for example, its applicability in detention centres, and also its personal scope, with another group of Member States contesting its applicability to applicants s­ ubject to ‘Dublin procedures’. The recast brought crucial clarifications and enlarged the scope of application of the instrument. 3.1.1 Territorial Scope Regarding its scope ratione loci, the recast Reception Conditions Directive mentions that it is applicable ‘on the territory, including at the border, in the territorial waters or in the transit zones of a Member State’.41 However, it does not apply in cases of requests for diplomatic or territorial asylum submitted to

38

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Parliament and the Council on the Commission proposal. In the negotiations of the recast Reception Conditions Directive, although the Council had never officially adopted a first reading position on the basis of the 2008 rcd Commission proposal, they were used as a tool to speed up negotiations. Therefore, the co-legislators tried to come to a commonly agreed text, prior to an official adoption by the Council of its first reading position on the basis of the 2011 rcd amended Commission proposal. See Council of the European Union, Amended proposal for a Directive of the European Parliament and of the Council laying down standards for the reception of asylum seekers (Recast) (First reading), Political agreement, Doc. 14112/1/12, rev 1, September 2012. 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), oj L180/96, 29 June 2013 (Recast Reception Conditions Directive). See recast Reception Conditions Directive, Article 31. Recast Reception Conditions Directive, Article 3(1).

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representations of Member States.42 The explicit mention in the text of the instrument’s applicability in territorial waters as well as transit zones, an element that was missing from the prior version of the Directive, fully reflects the relevant jurisprudence of the ECtHR.43 The exception of the Directive’s applicability in cases of requests submitted on representations of Member States has an impact in the so-called ‘protected entry procedure’ initiatives that could be activated. Concretely, it means that although the general human rights framework and the obligations under the 1951 Refugee Convention would apply in such cases, the provisions of the recast Directive would not. There is currently no harmonised definition of the notion of ‘Protected Entry Procedures’ at eu level but they could include requests submitted on representations of Member States. A study on behalf of the Commission defined Protected Entry Procedures as:44 [a]n overarching concept for arrangements allowing a non-national to approach the potential host State outside its territory with a claim for asylum or other form of international protection, and to be granted an entry permit in case of a positive response to that claim, be it preliminary or final. Protected entry procedures differ from refugee resettlement45 and humani­ tarian admission46 in that they are initiated by the individuals who have to 42 43

Recast Reception Conditions Directive, Article 3(2). See for example Amuur v France Appl no 19776/92 (EctHR, 25 June 1996) and Riad and Idiab v Belgium Appl no 29787/03 and 29810/03 (EctHR, 24 January 2008). 44 G. Noll, J. Fagerlund and F. Liebaut, Study for the European Commission: On the Feasibility of Processing Asylum Claims Outside the eu against the Background of the Common European Asylum System and The Goal of a Common Asylum Procedure (European Commission 2002) 20. 45 According to unhcr, resettlement involves the selection and transfer of refugees from a State in which they have sought protection to a third State which has agreed to admit them – as refugees – with permanent residence status, see unhcr, Resettlement Handbook, revised edition July 2011, at 3. For an eu understanding on the definition of resettlement see Regulation (eu) No. 516/2014 of the European Parliament and of the Council establishing the Asylum, Migration and Integration Fund, amending Council Decision 2008/381/EC and repealing Decisions No 573/2007/EC and No 575/2007/EC of the European Parliament and of the Council and Council Decision 2007/435/EC (amif Regulation), oj L 150, 20 May 2014, Article 2(a). 46 The concept of humanitarian admission encloses different initiatives. The amif Regulation defines humanitarian admission programmes as ‘an ad-hoc process whereby a Member State admits a number of third-country nationals to stay on its territory for a

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proactively approach the state authorities abroad in order to request entry on the basis of protection grounds. Different variations of such schemes were implemented in the past by several Member States but they have gradually been abolished.47 Another important point was the clarification of the application of the Directive in detention centres. The 2003 version of the Directive did not provide clear rules on asylum seekers’ detention. The only relevant provision stipulates the following: ‘[w]hen it proves necessary, for example for legal reasons or reasons of public order, Member States may confine an applicant to a particular place in accordance with their national law’.48 It has been observed that to allow Member States to confine asylum seekers for ‘legal reasons’ or ‘reasons of public order’ in itself almost implies a carte blanche approach: indeed, the fact that these are only examples suggests an area of state discretion, limited only by the requirement to show the necessity of such detention.49 This led at least seven Member States to conclude that the Directive was not applicable in detention centres.50 The recast Reception Conditions Directive stipulates that the Directive applies ‘[i]n all locations and facilities hosting applicants’.51 Coupled with the fact that grounds for deprivation of liberty, rights of detained asylum seekers and detention conditions are regulated in detail in the recast instrument,52 this formulation leaves no scope for contestation regarding the applicability of the Directive in detention centres and other spaces where asylum seekers are deprived of their liberty.

47 48 49

50 51 52

temporary period of time in order to protect them from urgent humanitarian crises due to events such as political developments or conflicts’, see amif Regulation, Article 2(b). Schemes of humanitarian admission have been recently adopted by eu Member States as  a response to the armed conflict in Syria. See unhcr, Resettlement, Humanitarian Admission, and Other Forms of Admission for Syrian Refugees: 2013/2014 Pledges, 2014; and ecre/elena, Information Note on Syrian Asylum Seekers and Refugees in Europe, 2013. See C. Hein and M. De Donato (Italian Council for Refugees), Exploring Avenues for Protected Entry in Europe, 2012. Reception Conditions Directive, Article 7(3). J. Handoll, ‘Directive 2003/9 on Reception Conditions of Asylum Seekers: Ensuring “Mere Subsistence” or a “Dignified Standard of Living”?’ in A. Baldacinni, E. Guild and H. Toner (eds), Whose Freedom, Security and Justice? eu Immigration and Asylum Law and Policy (Hart Publishing 2007) 213. See Commission 2007 rcd Report (n 19) 3; Odysseus 2006 rcd Study (n 21) 9. Recast Reception Conditions Directive, Recital 8. See recast Reception Conditions Directive, Articles 8–11.

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Given that the asylum policy is an area of differentiated integration,53 another issue that should be highlighted is which Member States are bound by the recast Directive. Firstly, Denmark has a general opt-out of all asylum measures and thus is not bound by it.54 The United Kingdom and Ireland have decided not to opt-in to the recast Reception Conditions Directive and are thus not bound by it.55 However, the United Kingdom had opted in the 2003 version of the Directive and thus continues to be bound by that prior version.56 A further clarification needs to be made concerning the applicability of some of the provisions of the recast Reception Conditions Directive for asylum seekers detained in the framework of the application of the recast Dublin Regulation, which allocates responsibility between Member States for the examination of asylum claims.57 Both the United Kingdom and Ireland have opted in to that instrument.58 The recast Regulation stipulates firstly that the entirety of the recast Recep­ tion Conditions Directive applies to Dublin procedures but ‘[s]ubject to the limitations in the application of that Directive’.59 Therefore, the entirety of the provisions of the recast Reception Conditions Directive is not applicable for the uk and Ireland who have exercised their right to opt-out. However, the recast Regulation also explicitly states that as regards detention, ‘the detention conditions and the guarantees applicable to persons detained, in order to secure the transfer procedures to the Member State responsible, Articles 9, 10  and 11 of Directive 2013/33/EU shall apply’.60 This formulation results in the incorporation of the specific articles of the recast Reception Conditions Directive into the text of the Dublin Regulation.61 Therefore, both the United 53

54 55 56 57

58 59 60 61

See Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of Freedom, Security and Justice, annexed to the teu and the tfeu, oj C 83/295, 30 March 2010 and Protocol No. 22 on the position of Denmark, annexed to the teu and the tfeu, oj C 83/299, 30 March 2010. See recast Reception Conditions Directive, Recital 34. See recast Reception Conditions Directive, Recital 33. See Reception Conditions Directive, Recital 19 as well as recast Reception Conditions Directive, Recitals 36, 37 and Article 32. 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), oj L 180/31, 29 June 2013 (recast Dublin Regulation). See recast Dublin Regulation, Recital 41. See recast Dublin Regulation, Recital 11. Recast Dublin Regulation, Article 28(4) (emphasis added). Tsourdi (n 32) 16.

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Kingdom and Ireland are bound by the specific articles of the recast Reception Conditions Directive when implementing the Dublin Regulation. 3.1.2 Personal Scope Regarding its personal scope, the Directive makes it clear that it does not apply to eu citizens seeking asylum in other Member States.62 This is in line with the  position that was retained in the eu’s recast Directive on qualifying for international protection.63 However, imposing such a restriction contravenes Article 42 of the 1951 Refugee Convention, which prohibits States from limiting the personal scope of Article 1 or making reservations to Article 3 of that Convention.64 The scope of the recast Reception Conditions Directive was explicitly broadened to cover applications for subsidiary protection.65 This approach is in conformity with the new legal basis in the tfeu that was analysed above.66 Member States are also encouraged, but not obliged, to apply the provisions of the recast Directive when deciding upon applications for reasons other than those covered by the recast Qualification Directive, therefore applications for non-­harmonised humanitarian permits that might be foreseen at national level.67 Finally, the text

62 63

64

65

66 67

Recast Reception Conditions Directive, Article 3, mentions that the Directive shall apply to ‘all third-country nationals and stateless persons’ (emphasis added). See 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), oj L 337/9, 20 December 2011 (recast Qualification Directive) Article 2(d)–(g). J. McAdam, ‘The Qualification Directive: An Overview’ in K. Zwaan (ed), The Qualification Directive: Central Themes, Problem Issues, and Implementation in Selected Member States (Wolf Legal Publishers 2007) 10; see also ecre, Information Note on the 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), 2013, 4. See recast Reception Conditions Directive, Article 3(1) read together with Article 2(a); see also recast Reception Conditions Directive, Recital 13 which states that: ‘with a view to ensuring equal treatment amongst all applicants for international protection and guaranteeing consistency with current eu asylum acquis, […] it is appropriate to extend the scope of this Directive in order to include applicants for subsidiary protection’. See above, Section 2. See recast Reception Conditions Directive, Article 3(4) and recast Reception Conditions Directive, Recital 29.

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clarifies that the recast Directive does not apply in case of activation of the Temporary Protection Directive.68 It should be stressed that the Directive is applicable to asylum seekers under ‘Dublin procedures’. The text stipulates that the recast Directive is applicable ‘during all stages and types of procedures concerning applications for international protection’.69 This is re-affirmed by the text of the recast Dublin Regulation.70 These explicit pronouncements are important as some Member States, such as France, contested the applicability of the Reception Conditions Directive to asylum seekers under a Dublin procedure. This issue was addressed by the cjeu in a 2012 judgment that resulted from a reference for a preliminary ruling from the French Conseil d’État.71 The Court held that the provisions of the Reception Conditions Directive, read in conjunction with the provisions of the Dublin Regulation,72 point to the conclusion that there is ‘only one category of asylum seekers’73 and that ‘an application for asylum is made before the process of determining the Member State responsible begins’.74 The cjeu stressed that the provisions of the Recep­ tion Conditions Directive aim ‘in particular to ensure full respect for human dignity and to promote the application of Articles 1 and 18 of the Charter’.75 It concluded that a Member State that has received an asylum application is responsible for granting the reception conditions under the Reception Condi­ tions Directive, even to an asylum seeker in respect of whom it decides, under 68

69 70 71

72

73 74 75

Recast Reception Conditions Directive, Article 3(3) which makes reference to 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 L 212, 07 August 2001 (Temporary Protection Directive). This latter legal instrument has so far never been used. Recast Reception Conditions Directive, Recital 8. See recast Dublin Regulation, Recital 11. Case C-179/11, Cimade, Groupe d’information et de soutien des immigrés (gisti) v Ministre de l’Intérieur, de l’Outre-mer, des Collectivités territoriales et de l’Immigration [2012] jo C 186. 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, oj L 050, 25 February 2003 (Dublin Regulation). Cimade et Gisti (n 71) para 40. Ibid para 41. Ibid para 42. Article 1 cfr concerns the right to human dignity whereas Article 18 cfr the right to asylum.

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the Dublin Regulation, to call upon another Member State, as the Member State responsible for examining her application for asylum.76 As to the duration of the obligation, the Court found that ‘only the actual transfer of the asylum seeker by the requesting Member State brings to an end the examination of the application for asylum by that State and its responsibility for granting the minimum reception conditions’.77 It is important to highlight that the cjeu noted that according to: the general scheme and purpose of Directive 2003/9 and the observance of fundamental rights, in particular the requirements of Article 1 of the Charter, under which human dignity must be respected and protected, the asylum seeker may not, […] be deprived – even for a temporary period of time after the making of the application for asylum and before being actually transferred to another Member State – of the protection of the minimum standards laid down by that Directive.78 Through this principled interpretation of the Reception Conditions Directive, the Court clarified its scope in a way that enhances coherence between the different legal instruments and ensures that the rights of asylum seekers do not fall between the cracks of the system. We note that although the recast Reception Conditions Directive provisions reaffirm these findings, the Court’s interpretation was based on the text of the first generation instruments. Therefore, firstly, Member States that have different practices should have amended them immediately in order to comply with the Court’s judgment and not wait for the transposition of the recast Directive. Secondly, the pronouncement also concerns the United Kingdom, which opted out of the recast Directive. We also note the cjeu’s direct reliance to Article 1 of the cfr on the right to human dignity, rather than the use of Article 4 cfr on the prohibition of torture, inhuman or degrading treatment, a point that will also be further analysed below. 3.1.3 Temporal Scope Finally, the recast Directive clarifies that it is applicable to ‘all stages of procedures’ as long as the third country nationals ‘are allowed to remain on the territory of the Member States as applicants’.79 According to the recast Reception Conditions Directive, ‘applicant’ is a third-country national or a stateless person 76 77 78 79

Ibid, para 50. Ibid, para 55 (emphasis added). Ibid, para 56. Recast Reception Conditions Directive, Recital 8 and Article 3(1).

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who has made an application for international protection in respect of which a final decision has not yet been taken.80 How long, though, is an applicant allowed to remain? Namely, are appeals proceedings also covered by the scope of the recast Reception Conditions Directive? The answer can be found in the recast Asylum Procedures Directive.81 First of all, the recast Asylum Procedures Directive stipulates that an applicant has a right to remain until the determining authority has made a decision at first instance.82 However, Member States may  make some exceptions, for example, regarding subsequent applications, or where they will surrender or extradite the person to an eu Member State, ­subject to their obligations under the European Arrest Warrant, or otherwise, or to a third country, or to international criminal courts or tribunals.83 Applicants for international protection are also allowed to remain ‘[u]ntil the time limit within which to exercise their right to an effective remedy has expired and, when such a right has been exercised within the time limit, pending the outcome of the remedy’.84 Therefore, in principle, appeals are suspensive. However, in certain circumstances that are exhaustively defined by the recast Asylum Procedures Directive,85 such as, for example, appeals against applications that have been found to be manifestly unfounded, Member States may decide not to grant automatic suspensive effect to the appeals. In such cases, a national judicial instance shall decide, either ex officio, or upon the applicant’s request, whether the appeal will have suspensive effect.86 Member States should allow the applicant to remain in their territory until the national judicial instance has decided whether or not to vest the appeal with suspensive effect.87 80 81

Recast Reception Conditions Directive, Article 2(c). 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), oj L 180/60, 29 June 2013 (recast Asylum Procedures Directive). 82 See recast Asylum Procedures Directive, Article 9(1). The recast directive clarifies that the ‘right to remain shall not constitute an entitlement to a residence permit’. For further details on the exceptions from the right to remain in case of subsequent applications see recast Asylum Procedures Directive, Article 41. 83 See recast Asylum Procedures Directive, Article 9(2). See also recast Asylum Procedures Directive, Article 9(3) which safeguards the non-refoulement principle in case of extradition to third countries. 84 Recast Asylum Procedures Directive, Article 46(5). 85 See recast Asylum Procedures Directive, Article 46(6). See also recast Asylum Procedures Directive, Article 46(7) for the special rules that apply in the case of border procedures. 86 Ibid. 87 Recast Asylum Procedures Directive, Article 46(8).

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A contrario, this formulation entails that the applicability of the recast Directive terminates when the person concerned is no longer allowed to remain. Namely, it uses the term ‘as long as they are allowed to remain as applicants’ and not the terms ‘as long as they are applicants’ or ‘as long as they remain’. Therefore, the Directive contemplates the case than an individual is still an applicant for international protection88 but is no longer covered by the Asylum Reception Conditions Directive 2013/33/EU. 3.2 Provisions on Detention Apart from an ambiguous provision, namely Article 7(3),89 the 2003 Reception Directive failed to regulate the detention of asylum seekers and did not exhaustively enumerate permissible detention grounds. In addition, no mention was made of the applicable detention conditions or guarantees. The recast breaks new ground by regulating all these issues in a detailed manner. In its 2008 Reception Conditions Directive proposal, the Commission stressed that it was ‘necessary to address this issue in a holistic way in this directive with a view to ensure that detention is not arbitrary and that fundamental rights are respected in all cases’.90 The provisions contained in that proposal, however, did not form the basis of a satisfactory starting point for negotiations for the Member States. This led the Commission, in its 2011 amended recast proposal to introduce ‘more flexibility for some of the proposed detention rules’ and to clarify different notions ‘in order to facilitate their implementation, and to accommodate certain particularities of Member States’ different legal systems’.91 In the course of the negotiations on the basis of the text of the amended recast proposal, this provision was further modified. This was particularly the case for the detention grounds, where Council delegations raised the number of permissible detention grounds from 4 to 6.92

88

Since Article 2(e) of the recast Asylum Procedures Directive states that a final decision is one which is no longer subject to a remedy, irrespective of whether such remedy has the effect of allowing applicants to remain in the Member States concerned pending its outcome. 89 That provision read as follows: ‘when it proves necessary, for example for legal reasons or reasons of public order, Member States may confine an applicant to a particular place in accordance with their national law’. 90 2008 rcd Commission Proposal (n 22), Explanatory Memorandum, 6. 91 2011 rcd Amended Commission Proposal (n 33), Explanatory Memorandum, 6. 92 See for example Council Doc. 6799/12 of 29 February 2012, 28–29.

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3.2.1 Detention as an Exception and the Obligation to Establish Alternatives Detention is conceived as an exception. The recast Directive explicitly states that a person may not be held in detention solely because they have applied for international protection.93 This wording echoes the spirit and legal obligations that are established in the Geneva Convention that provides for protection against penalisation for refugees. Detention must conform to the principles of necessity and proportionality and can only be ordered on the basis of an individual assessment of each case.94 This goes beyond the obligations of Member States under Article 5(1) (f) of the echr, which does not foresee a necessity test, unless it is established under national law. The recast Reception Conditions Directive requires Member States to consider alternatives before subjecting asylum seekers to detention. Even without this explicit obligation, however, international law and the eu Charter still require Member States to examine alternatives, as an application of the principles of necessity and proportionality, in order to avoid arbitrary deprivation of liberty.95 Under the recast Directive Member States must not only operationalise in practice alternative schemes, but must also enact such schemes via their national rules transposing the Directive. The recast Directive adopts an open ended-list, mentioning measures ‘such as regular reporting to the authorities, the deposit of a financial guarantee, or an obligation to stay at an assigned place’.96 This means that Member States may contemplate further schemes.97 Finally, Recital 20 is of paramount importance. It gives legal guidance on the understanding of an alternative to detention under eu law. It stresses that:

93

Recast Reception Conditions Directive, Article 8, para1; see also recast Asylum Procedures Directive, Article 26, para1. 94 Recast Reception Conditions Directive, Article 8(2), which states that ‘when it proves necessary and on the basis of an individual assessment of each case, Member States may detain an applicant, if other less coercive alternative measures cannot be applied effectively’. See also recast Reception Conditions Directive, Recital 15 which emphasises that ‘applicants may be detained only under very clearly defined exceptional circumstances laid down in this Directive and subject to the principles of necessity and proportionality with regard to both to the manner and the purpose of such detention’. 95 See eu Charter, Article 6, read together with eu Charter, Articles 52(3) and 53. 96 Recast Reception Conditions Directive, Article 8(4). 97 For an in-depth study on the regulation and application of alternatives to immigration detention in the eu see P. De Bruycker, A. Bloomfield, L. Tsourdi and J. Petin, ‘Alternatives to Immigration Detention: Time for Implementation’ (2015) Odysseus Network Report.

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[i]n order to better ensure the physical and psychological integrity of the applicants, detention should be a measure of last resort and may only be applied after all non-custodial alternative measures to detention have been duly examined. Any alternative measure to detention must respect the fundamental human rights of applicants. This recital adds new elements. Alternative measures should be non-custodial; any scheme whose application deprives the applicant of their liberty cannot be regarded as an alternative to detention. Moreover, the operationalisation of such schemes should not infringe on the fundamental rights of asylum seekers; in particular it is worth mentioning in this context: the prohibition of torture, inhuman or degrading treatment, the right to human dignity, the right to private and family life and the right to an effective remedy. 3.2.2 Detention Grounds One of the main advances of the recast is the establishment of an exhaustive list of grounds for detention. Detention of asylum seekers is only permissible in order to pursue one of these 6 grounds.98 The first and second detention grounds revolve respectively around (i) the determination or verification of identity or nationality and (ii) the determination of elements on which the application for international protection is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding of the applicant. The wording of the second ground in the 2011 amended recast proposal was somewhat more restrictive as it foresaw that this detention ground would be time-limited to ‘the context of a preliminary interview’.99 This precision was later removed as a result of the 98

99

According to Article 8(3) of the recast Directive, the grounds for detention are: (a) in order to determine or verify his or her identity or nationality; (b) in order to determine those elements on which the application for international protection is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding of the applicant; (c) in order to decide, in the context of a procedure, on the applicant’s right to enter the territory; (d) when he or she is detained subject to a return procedure under (the Return Directive), in order to prepare the return and/or carry out the removal process, and the Member State concerned can substantiate on the basis of objective criteria, including that he or she already had the opportunity to access the asylum procedure, that there are reasonable grounds to believe that he or she is making the application for international protection merely in order to delay or frustrate the enforcement of the return decision; (e) when protection of national security or public order so requires; (f) in accordance with Article 28 of (the recast Dublin Regulation). com(2011) 320 final, Article 8(3)(b).

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negotiations. In addition, the qualification of the existence of a ‘risk of absconding’ was absent from the 2011 text.100 Despite its inclusion in the Directive text, no definition of the term ‘risk of absconding’ was included in this instrument. Both of these grounds can be understood as ‘an obligation by law’ and detention comes to ‘secure its fulfilment’, as foreseen in Article 5(1)(b) of the echr. However, detention must be necessary and proportional. Thus Member States have to justify why recourse to detention is necessary in the individual case, such as objectively substantiating a risk of absconding, and prove that less invasive measures would not have been effective. In addition, according to the principle of proportionality, a balance must be struck between the importance in a democratic society of securing the immediate fulfilment of the obligation in question, and the importance of the right to liberty. The foreseeable length of the detention and the behaviour of the applicant play an important role when assessing the proportionality of the measure. Moreover, in the asylum framework, unlike the return framework, information cannot be sought through the authorities of the country of origin. Thus the principle of ‘due diligence’ in ascertaining the existence of one of grounds (a) or (b) of Article 8(3) of the Directive would mean that they could be invoked only for a short period to collect information from the applicant and process any documentation the national authorities might provide. As the unhcr notes, this exception to the general principle that detention of asylum-seekers is a measure of last resort cannot be used to justify detention for the entire determination procedure, or for an unlimited period of time.101 The ground under point (c), ‘in order to decide, in the context of a procedure, on the applicant’s right to enter the territory’, fits within the exhaustive list of exceptions to the right to liberty and security in the echr as interpreted by the ECtHR. More specifically, the ECtHR considered in the Saadi v uk case, that asylum seekers’ detention could be understood as falling under the scope of detention so as to prevent a person from ‘effecting an unauthorised entry into the country’.102 However, some clarifications should be made on this point. Apart from the fact that the full array of guarantees developed by the ECtHR applies, eu law, 100 Ibid. 101 unhcr, unhcr Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention, 2012 (2012 unhcr Detention Guidelines) para 28. 102 Saadi v the United Kingdom Appl no 13229/03 (EctHR, 28 January 2008); and Article 5(1)(f) echr.

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unlike the echr, also establishes a requirement of necessity. Thus, the Saadi v uk scenario, where detention was permitted in order to swiftly process claims so as to prevent an ‘unauthorised entry’, is not applicable in eu law. The Strasbourg Court explicitly stated that its finding was premised on the fact that ‘there was no requirement that the detention be reasonably considered necessary’, as in the case of pre-removal detention.103 Put plainly, the absence of a requirement of necessity was the premise on which the ECtHR allowed detention for the purpose of administrative expediency. On the contrary, under eu law Member States have to objectively justify why detention is necessary in each case. In addition, the Strasbourg Court only allowed detention on this limb of Article 5(1)(f) echr, in cases where a State had not ‘formally authorised’ entry or stay pending the examination of the asylum claim. It is arguable that under eu asylum law, entry of asylum seekers is authorised in all other contexts than in border procedures.104 However, still this does not result in blanket permission to detain all applicants at the border. The requirements of necessity and proportionality and the principle of an individualised assessment also apply in this context. The ground contemplated under point (d) of Article 8(3) of the Directive reveals the overlap between eu asylum and migration policies. Some third country-nationals detained with a view to enforcing a return decision file an asylum claim. Cognizant of this, the Member States wanted a means to prevent what they considered ‘abusive’ claims that aim exclusively to obstruct the return process. This detention ground was not included in any of the Commission proposals but was added by the Member States.105 In practice, it is possible that the individual has not had the possibility to access an asylum procedure before being served with a return order, for example at the border where expedited return takes place, or in Member States ­facing particular migratory pressures and structural problems in their asylum system which render access to an asylum procedure problematic.106 The final compromise on the wording of this ground takes into consideration such 103 Ibid paras 72–73. 104 See Asylum Procedures Directive 2013/32/EU, Article 43(2). 105 See for example Council Doc. 13102/11 of 12 September 2011 and Council Doc. 6799/12 of 29 February 2012. 106 See for example ecre/icj, Second Joint Submission of the International Commission of Jurists (icj) and of the European Council on Refugees and Exiles (ecre) to the Committee of Ministers of the Council of Europe in the case of mss v Belgium and Greece (Application no 30696/09) and related cases, February 2013, 18–20.

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s­ ituations; however, it is important that it is implemented correctly at national level and that the burden of proving fraudulent motives, namely ‘merely in order to delay or frustrate the enforcement of the return decision’ will indeed rest on the Member State. The Court of Justice of the eu has already addressed similar questions. In Kadzoev, it stressed that detention for the purpose of removal and detention of an asylum seeker and the applicable national provisions fall under different legal rules.107 In Arslan, the Court clarified that during the examination of the asylum claim the Return Directive is not applicable.108 The ecj observed also that at the point of rendering its decision, there were no harmonized grounds for detaining asylum seekers at European level and thus it fell to the Member States to adopt such lists, in full compliance with their obligations arising from both international law and European Union law.109 The Court found that, on the basis of the text of the former Asylum Reception Directive 2003/9/EC, it is possible to keep an asylum seeker in detention on the basis of a provision of national law, if it appears that this claim was made solely to delay or jeopardise the enforcement of the return decision.110 However, in that case, the Member State needs to assess on a case-by-case basis all the relevant circumstances and it must be objectively necessary to maintain detention to prevent the person concerned from permanently evading return.111 Subparagraph (e), targets two distinct situations: the protection of national security or the protection of public order. These grounds are also enounced in a series of provisions contained in soft-law instruments on the detention of asylum seekers.112 Concerning the content of the term ‘national security’, the 2012 unhcr guidelines note that ‘determining what constitutes a national security threat lies primarily within the domain of the government’ but stress that the standards included in the guidelines, in particular that the detention is necessary, proportionate to the threat, non-discriminatory, and subject to judicial oversight

107 Case C-357/09 Kadzoev [2009] ecr 2009 I-11189 para 45. 108 Case C-534/11 Arslan [2013] ecli:eu:C:2013:343, para 49. 109 Ibid paras 55–56. 110 Ibid para 63. 111 Ibid. 112 See Council of Europe, Committee of Ministers, Rec(2003)5 of the Committee of Ministers to member states on measures of detention of asylum seekers, 16 April 2003, para 3; unhcr, 2012 Detention Guidelines, paras 22–28 (addressing public order) and 30 (addressing national security).

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apply also in this framework.113 An example of a threat to national security could be a terrorist threat. The scope and content of the term ‘public order’ is far from clear. The 2012 unhcr guidelines understand the following situations as public order protection: ‘to prevent absconding and/or in cases of likelihood of non-cooperation’; ‘in connection with accelerated procedures for manifestly unfounded or clearly abusive claims’; ‘for initial identity and/or security verification’ and ‘in order to record, within the context of a preliminary interview, the elements on which the application for international protection is based, which could not be obtained in the absence of detention’.114 Some of these overlap with grounds listed in the Directive under Article 8(3)(a) and (b). Given the exhaustive enumeration of exceptions to the right to liberty and security under Article 5 of the echr, the grounds of national security or public order can only be validly invoked by Member States, if they fall in the scope of one of the exceptions contemplated therein. The ECtHR has clearly stated that:115 [t]he Court does not accept the Government’s argument that Article 5 § 1 permits a balance to be struck between the individual’s right to liberty and the State’s interest in protecting its population from terrorist threat. This argument is inconsistent not only with the Court’s jurisprudence under sub-paragraph (f) but also with the principle that sub-paragraphs (a) to (f) amount to an exhaustive list of exceptions and that only a ­narrow interpretation of these exceptions is compatible with the aims of  Article 5. If detention does not fit within the confines of the sub-­ paragraphs as interpreted by the Court, it cannot be made to fit by an appeal to the need to balance the interests of the State against those of the detainee. One such situation would be the valid invocation, for example, of securing ‘the fulfilment of any obligation prescribed by law’.116 Moreover, these grounds could be invoked in relation to ‘the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence’ or ‘when it is reasonably considered necessary to prevent his committing an offence or fleeing after having 113 Ibid para 30. 114 unhcr, 2012 Detention Guidelines, paras 22–28. 115 A and others v the United Kingdom Appl no 3455/05 (ECtHR, 19 February 2009) para 171. 116 See echr, Article 5(1)(b).

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done so’.117 Nevertheless, in that case relevant provisions of criminal law at national level, rather than those concerning reception of asylum seekers, would come into play to justify such detention.118 Another way this ground could be validly invoked in compatibility with the echr is in strict relation to the ground contained in Article 8(3)(c), i.e. procedure on the applicant’s right to enter, which reflects Article 5(1)(f) of the echr. This would mean, however, that all the guarantees related to ground (c) would apply and that Member States would have to prove that detention is closely connected to deciding upon the entry of the individual. The last ground, point (f) of Article 8(3) of the Directive, was also not contained in the Commission proposals but was added later by the Council in the course of the negotiations.119 It contemplates detention of asylum seekers who are subject to a ‘Dublin transfer’; it basically refers to the Dublin iii Regulation (eu) No. 604/2013, according to which an asylum seeker should not be held in detention for the sole reason that she is subject to a ‘Dublin procedure’.120 The only recognized ground for detention is ‘a significant risk of absconding’ on the basis of an individual assessment.121 The Regulation stresses that the principles of necessity and proportionality need to be respected in the application of this ground.122 It sets strict deadlines for submitting a request to the Member State deemed responsible and for realising the transfer.123 Finally, as regards detention conditions and the guarantees applicable to persons detained, the relevant provisions of the Directive are fully applicable.124 The Dublin iii Regulation (eu) No. 604/2013, defines a risk of absconding as ‘the existence of reasons in an individual case, which are based on objective criteria defined by law, to believe that an applicant or a third-country national 117 See echr, Article 5(1)(c). 118 Detention could therefore be covered under the scope of Article 5(c) echr which concerns detention on remand. 119 See for example Council Doc. 13102/11 of 12 September 2011 and Council Doc. 6799/12 of 29 February 2012. 120 Recast Dublin Regulation, Article 28(1). 121 Recast Dublin Regulation, Article 28(2). 122 Ibid. 123 Recast Dublin Regulation, Article 28(3). A ‘take charge’ request applies where a Member State with which an application for international protection has been lodged considers that another Member State is responsible for examining the application. A ‘take back’ request applies where an individual applies for international protection or is present on the territory of a Member State while his application is already under examination in another Member State. 124 Recast Dublin Regulation, Article 28(4).

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or a stateless person who is subject to a transfer procedure may abscond’.125 This definition is almost identical to that contained in the Return Directive 2008/115/EC.126 The wording suggests that without national laws of Member States specifying objectively when such a risk exists, it cannot be relied upon for the pre-transfer deprivation of liberty.127 In this regard, Germany’s Federal Court of Justice stated128 that paragraph 62 of the Residence Act did not entail any objective criteria defining a risk of absconding129 and declared as a result that Dublin transfers could no longer be based on a risk (or intention) of absconding.130 The 2012 unhcr detention guidelines state that: [f]actors to balance in an overall assessment of the necessity of such detention could include, for example, a past history of cooperation or non-cooperation, past compliance or non-compliance with conditions of release or bail, family or community links or other support networks in the country of asylum, the willingness or refusal to provide information about the basic elements of their claim, or whether the claim is considered manifestly unfounded or abusive.131 This detention in view of the transfer of the applicant to another Member State for the functioning of the eu responsibility-allocation regime could be contemplated as ‘pre-removal’ detention. The removal, however, referring to the transfer to the Member State responsible and not to the country of origin of the applicant. It should be borne in mind that the application for international protection has still not been examined on its merits and the individual continues to be an applicant for international protection with the right to remain in the eu, albeit in another Member State. 3.2.3 Procedural Guarantees The maximum permissible duration of detention is not specified. However, several elements point towards a short period. Article 9(1) stipulates that: 125 Recast Dublin Regulation, Article 2(n). 126 Return Directive 2008/115/EC, Article 3(7). 127 P. De Bruycker, S. Mananashvili and G. Renaudière, ‘The Extent of Judicial Control of ­Pre-Removal Detention in the eu European Synthesis Report of the Project CONTENTION’ (2014) European University Institute, Migration Policy Centre, Odysseus Network, 23. 128 Bundesgerichtshof, Decision v zb 31/14 26 June 2014. 129 Paragraph 62(3) 1st Sentence, No. 5 mentions merely an intention of absconding without providing further specifics. 130 De Bruycker, Mananashvili and Renaudière (n 127) 23. 131 unhcr, 2012 Detention Guidelines (n 101) para 22.

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[a]n applicant shall be detained only for as short a period as possible and shall be kept in detention only for as long as the grounds set out in Article 8(3) are applicable. Administrative procedures relevant to the grounds for detention set out in Article 8(3) shall be executed with due diligence. Delays in administrative procedures that cannot be attributed to the applicant shall not justify a continuation of detention. Recital 16 further enhances this obligation by providing that: [w]ith regard to administrative procedures relating to the grounds for detention, the notion of ‘due diligence’ at least requires that Member States take concrete and meaningful steps to ensure that the time needed to verify the grounds for detention is as short as possible, and that there is a real prospect that such verification can be carried out successfully in the shortest possible time. Detention shall not exceed the time reasonably needed to complete the relevant procedures. It is important to note that in the framework of asylum, and unlike the return framework, ‘due diligence’ does not refer to a timely processing of asylum claims, as detention is not authorised for effecting the assessment, or for administrative convenience. Due diligence relates to speedily and efficiently verifying the reasons why it is considered necessary to detain the asylum seeker.132 The recast Reception Conditions Directive also includes a set of further guarantees on judicial review; obligations on information and a right to free legal assistance and representation. The standards around those were considerably diluted during the negotiations. Although the Commission proposals foresaw respectively that administrative authorities could only order detention excep­ tionally,133 or that if detention was ordered by administrative authorities it would need to be confirmed by judicial authorities in 72 hours,134 the recast provisions are less protective for asylum applicants. Detention can be ordered by either judicial or administrative authorities. When ordered by the latter, Member States should provide for a speedy judicial review of the lawfulness of detention to be conducted ex officio and/or at the request of the applicant. No specific time-limit is set for the execution of this control; this is left in the discretion of Member States who, nevertheless, 132 ecre, Not There Yet: An ngo Perspective on Challenges to a Fair and Effective Common European Asylum System, 2013, 34. 133 See 2008 rcd Commission Proposal (n 22), Article 9(2). 134 See 2011 rcd Amended Commission Proposal (n 33), Article 9(2).

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have to specify it in their national laws. The only precision contained in the Directive is that such control should be undertaken ‘as speedily as possible’ from either the beginning of detention, when conducted ex officio, or from the launch of the proceedings, when conducted at the request of the applicant. If detention is found unlawful as a result of this control, the applicant should be released immediately. The Directive enounces several obligations regarding information to the applicants in a language ‘which they understand or are reasonably supposed to understand’.135 This formulation raises concern as to its compatibility with the echr. In fact, the Convention stipulates that information of the reasons of the arrest and of any charges against the individual, should be communicated in a language ‘which he understands’.136 Moreover, the ECtHR has found a violation of Article 5(2) of the Convention in the case of a Polish detainee who received a detention order in Ukrainian, a language that he did not have sufficient knowledge of.137 Article 9(4) of the directive has thus to be applied in the light of this jurisprudence. The Directive contains a right to free legal assistance and representation, the scope of which includes ‘at least, the preparation of the required procedural documents and participation in the hearing before the judicial authorities on behalf of the applicant’.138 In addition, a certain quality is expected from the legal representatives who should be ‘suitably qualified persons as admitted or permitted under national law whose interests do not conflict or could not potentially conflict with those of the applicant’.139 As long as these conditions are fulfilled, Member States may foresee that only specifically designated advisors or councillors assist and represent applicants.140 Nevertheless, this right has been greatly qualified compared to what the Com­ mission had originally envisaged. It concerns only the initial judicial review and is subject to a financial needs test.141 Additional limitations can also be foreseen. Namely, Member States could choose to impose monetary and/or time limits, as long as such limitations do not arbitrarily restrict access to legal assistance and representation.142 Furthermore, Member States may provide 135 See recast Reception Conditions Directive, Article 9(4); emphasis added. 136 echr, Article 5(2); emphasis added. 137 See Nowak v Ukraine Appl no 60846/10 (ECtHR, 31 March 2011). 138 Recast Reception Conditions Directive, Article 9(6). 139 Ibid. 140 Recast Reception Conditions Directive, Article 9(7)(b). 141 Recast Reception Conditions Directive, Article 9(6) and (9). 142 Recast Reception Conditions Directive, Article 9(8)(a).

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that, as regards fees and other costs, the treatment of applicants is not more favourable than the treatment generally accorded to their nationals.143 However, this provision does not foresee a so-called ‘merits-test’, i.e. the possibility for Member States to exclude legal assistance and representation in case there is ‘no tangible prospect of success’ of the application.144 This reflects the importance that is placed on the right at stake, namely the right to liberty and security of the individual. It somewhat counterbalances as well, the fact that detention may be ordered on a regular basis by administrative authorities. 3.3 Access to the Labour Market Access to the labour market was a particularly controversial issue in the drafting process of the former, as well as the recast Asylum Reception Directive. The approach that was adopted in the Reception Conditions Directive was to grant access after a waiting period under certain conditions.145 However, it did not define, or at least suggest, the conditions under which access to the labour market should be granted. 3.3.1 The Commission Proposals The 2008 Commission Proposal revisited the initial approach and aimed at achieving a higher degree of harmonisation. It reduced the waiting period to a maximum of six months regardless of whether a decision at first instance has been taken or not.146 It stated that ‘access should not be unduly restricted by Member States’, a formulation that would have left intact the power to define conditions under which access would have been eventually granted.147 Finally, the possibility for Member States to give priority to eu citizens and legally resident third country nationals for reasons of labour market policies was deleted. The 2011 Amended Commission Proposal already introduced more flexibility. It kept, in principle, a reduction of the waiting period in 6 months, but also foresaw some cases where this could be extended for an additional 6 months.148 It permitted conditions but also required that ‘asylum seekers have effective access to the labour market’.149 It retained the deletion of any priority rules. 143 See Asylum Reception Conditions Directive (n 39), Article 9(8)(b). 144 On the contrary such a possibility is foreseen by the Directive for other types of appeals; see recast Reception Conditions Directive, Article 26(3). 145 Reception Conditions Directive, Article 11. 146 2008 rcd Commission Proposal (n 22), Article 15(1). 147 2008 rcd Commission Proposal (n 22), Article 15(2) and sec (2008) 2944, at 37. 148 See com(2011)320 final, Article 15(1). 149 Ibid Article 15(2).

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The European Parliament supported the Commission’s approach in its 2008 proposal.150 However, some of the negotiators at the Council feared that such amendments were far-reaching and could create a pull factor for economic migrants and therefore preferred to keep more flexibility.151 The final compromise incorporates moderate changes compared to the former Asylum Reception Directive 2003/9/EC, that are significantly watered down compared to the 2008 Commission proposal. This illustrates that this part of the Directive continues to be politically sensitive. 3.3.2 Accessing the Labour Market in the Recast Reception Conditions Directive The obligation to determine a waiting period during which asylum seekers were completely excluded from the labour market152 was deleted from the text of the Directive. The new text only mentions a maximum length after which Member States can no longer deny access to the labour market. The final compromise between the European Parliament and the Council mathematically halves the difference between the two positions; thus access is to be granted ‘no later than 9 months’ from the date of the application. However, an additional requirement is that no decision must have been taken at first instance and the delay should not be attributed to the applicant. Member States should decide on the conditions under which access to the labour market is to be granted. There is consequently no right to automatic access after a maximum of nine months but the individual right to a decision.153 The provision hence does not refer to abstract conditions of access but to a decision on the individual case.154 Once the waiting period, where applied, has expired, it is consequently doubtful whether Member States could impose general restrictions to the access to the labour market other than the priority rule.155 They may, however, require asylum seekers to apply for a work permit. 150 See 2009 ep position (n 25), Article 15. 151 See for example Council Doc. 13102/11 of 12 September 2011 and Council Doc. 6799/12 of 29 February 2012. 152 See former Asylum Reception Directive 2003/9/EC, Article 11(1). 153 M. Peek and E. Tsourdi, ‘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’ in K. Hailbronner and D. Thym, eu Immigration and Asylum Law Commentary (2nd ed, Beck/Hart Publishing forthcoming 2016). 154 Ibid. 155 Ibid.

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Any conditions must, however, not nullify access. On the contrary, the Directive refers to an obligation for the Member States to ensure ‘effective access to the labour market’. A recital adds that:156 [i]n order to promote the self-sufficiency of applicants and to limit wide discrepancies between Member States, it is essential to provide clear rules on the applicants’ access to the labour market. The Directive also allows Member States, for reasons of labour market policies, to establish a general priority of eu citizens, nationals of the European Economic Area (eea) States and legally resident third-country nationals. This means that an asylum seeker will only be allowed to take up an employment if no member of these groups is available to fill the vacancy. Nevertheless, this provision is to be understood in the light of the above-mentioned Recital of the Directive as well as the obligation to ensure that access is ‘effective’. Once granted, the work permit should not be withdrawn again. The third paragraph of the provision explicitly states this principle for the period after a negative decision on the asylum application, if an appeal with suspensive effect has been lodged. 3.4 Level of Material Reception Conditions Available The level of material support that must be available to asylum applicants is an area where wide divergences are noted in national practice and it constituted, unsurprisingly, one of the most contentious points in the negotiations of the recast Directive. Material reception conditions may either be provided in kind or in the form of financial allowances or vouchers, or in a combination of the two. The 2006 Odysseus rcd Study found that where material reception conditions were provided exclusively or mostly in kind they were ‘generally deemed adequate’.157 On the contrary, where they were provided in terms of financial allowances they were found to be ‘[i]nadequate to ensure the health and/or subsistence of asylum-seekers’.158 The data reported in a recent European Migration Network study, attest to the divergences of amounts available for asylum seekers per Member State, as  well as to the different level of investment and ensuing quality of their reception systems.159 In addition, reports by, among others, civil society 156 157 158 159

Recast Reception Conditions Directive, Recital 23. Odysseus 2006 rcd Study (n 21) 27–29. Ibid 29. European Migration Network, ‘Synthesis Report: The Organisation of Reception Facilities for Asylum Seekers in different Member States’ (2014).

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organisations,160 the Commissioner for Human Rights of the Council of Europe,161 special procedures of the Human Rights Council of the un,162 as well as relevant ECtHR case-law,163 attest to significant numbers of asylum seekers in some Member States facing, at times, a complete lack of reception conditions, both in-kind and financial. On this backdrop, the section analyses jurisprudential developments in this area and comments on whether the provisions in the recast can adequately address current gaps in provision of material reception conditions when it takes the form of financial allowances and vouchers. 3.4.1 A Critical Assessment of the Court of Justice of the European Union Case-Law In a judgment issued on February 2014, the Court of Justice had the opportunity to interpret the relevant provisions of the current Directive and to formulate important safeguards.164 The case relates to the reception crisis in Belgium, which has in the meantime been addressed to a large extent, but which affected around 12,000 asylum applicants that could not be accommodated between the end of 2009 and the beginning of 2012.165 It concerned the level of financial assistance that a Member State must make available to asylum seekers in case they are granted financial, rather than in-kind, assistance. 160 See for example the Asylum Information Database (aida), an ecre project, containing country reports, also covering reception conditions, in 14 countries. Accessible at: . 161 See for example Council of Europe: Commissioner for Human Rights, Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visit to Malta from 23 to 25 March 2011, CommDH(2011)17 (CoE 2011) and Council of Europe: Commissioner for Human Rights, Report by Nils Muižnieks Commissioner for Human Rights of the Council of Europe following his visit to Greece from 28 January to 1 February 2013, CommDH(2013)6, 16 April 2013 (CoE 2013). 162 See for example un Human Rights Council, Report of the Special Rapporteur on the human rights of migrants, Regional study: management of the external borders of the European Union and its impact on the human rights of migrants, un Doc. A/HRC/23/46, 24 April 2013 and un Human Rights Council, Report by the Special Rapporteur on the human rights of migrants, Addendum: Mission to Italy, un Doc. A/HRC/23/46/Add.3, 30 April 2013. 163 See for example, mss v Belgium and Greece (n 9) as well as Tarakhel v Switzerland Appl No 29217/12 (ECtHR, 4 November 2014). 164 Case C-79/13, Federaal agentschap voor de opvang van asielzoekers c Selver Saciri, Danijela Dordevic, Danjel Saciri et Sanela Saciri 2014, not yet published. 165 On the Belgian asylum crisis see cire, Vluchtelingenwerk Vlaanderen, ‘Les visages de la crise de l’accueil des demandeurs d’asile’ (2010); and Fedasil, ‘Annual Report Fedasil 2011: Reception of Asylum Seekers’ (2012).

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The Court reaffirmed its jurisprudence in Cimade and Gisti according to which an asylum seeker should not be deprived, even for a temporary period of time after filing her application, of the minimum standards foreseen by the Directive.166 Interpreting Article 13(2) of the Reception Conditions Directive, in light of its Article 2(j), the Court concluded that financial assistance had to: ‘be sufficient to ensure a dignified standard of living and adequate for the health of applicants and capable of ensuring their subsistence’.167 In addition it noted that, Member States must take into account the situation of persons having special needs,168 as well as the principles of family unity and the best interests of the child.169 The cjeu concluded that where a Member State has opted to provide the material reception conditions in the form of financial allowances, those allowances must be capable of ensuring their subsistence by enabling them to obtain housing, if necessary, on the private rental market.170 When a family is concerned, those allowances must enable minor children of asylum seekers to be housed with their parents, so that the family unity is maintained.171 Finally, the Court insisted on the fact that the saturation of the reception networks was not a justification for any derogation from meeting those minimum standards established by the Reception Conditions Directive.172 The Court highlights, once more, the obligation to respect the principle of human dignity that is enshrined in Article 1 cfr.173 As Dupré observes, dignity is a new word in the language of eu constitutionalism: it is a new foundational value (the first one under Article 2 teu)174 and the first fundamental right 166 Saciri (n 164) para 35 and Cimade and Gisti (n 71) para 56. 167 Ibid para 40. 168 ‘Persons having special needs’ is a term of art and refers to vulnerable applicants who are  found, after an individual evaluation of their situation, to have special needs See Reception Conditions Directive, Article 17. In the recast version the issue of vulnerability and what is now termed as ‘special reception needs’ is elaborated in Articles 2(k), 21 and 22. 169 Saciri (n 164) para 41. 170 Ibid para 42. 171 Ibid para 45. 172 Ibid para 50. 173 Ibid para 35. 174 Article 2 of the Treaty on the European Union (teu) reads as follows: ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail’.

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under the Charter.175 In practical terms, dignity’s dual legal nature under the Charter is likely to prove beneficial as it offers flexibility to protect human rights in the most appropriate way.176 This direct reference by the cjeu to Article 1 cfr in both Cimade and Gisti and Saciri invites the question whether the content of this right is similar to the content of Article 4 cfr, or if in fact the notion of human dignity embraces other elements and implies broader positive obligations of a socio-ecomomic nature for the Member States. Such obligations, would be incurred by Member States when ‘they are implementing Union law’,177 in this specific case secondary legislation, namely the Reception Conditions Directive and the recast Reception Conditions Directive. The cjeu, although referring to the concept of human dignity in its case-law on reception conditions, has not yet pronounced itself specifically on the issue of the interrelation between Articles 1 and 4 of the Charter and therefore no firm conclusions can be safely drawn. One author advances that the: use [of dignity] will be tested in terms of the minimum content of a life with dignity as well as state procedures for ensuring adherence to the minimum standards. It will not be confined to inhuman and degrading treatment, although predictably, such an inquiry will be very prevalent.178 The Reception Conditions Directive’s explicit reference to Article 1 cfr,179 which triggered cjeu’s direct reliance on this article in its Reception Conditions Directive case-law, seems to be pointing in this direction, i.e. that ‘full respect for human dignity’180 entails broader obligations than the prohibition of torture, inhuman or degrading treatment. Such an opinion can also be strengthened by the interpretative method relied upon by the cjeu in its case-law, that of seeking the ‘effet utile’ of each provision. The content of Article 1 of the cfr cannot fully reflect that of Article 4 cfr as such an interpretation would simply render the former article superfluous. This interpretation, if confirmed by 175 C. Dupré, ‘Article 1 – Human Dignity’ in S. Peers, T. Hervey, J. Kenner and A. Ward (eds), The eu Charter of Fundamental Rights: A Commentary (Hart Publishing 2014) 15. 176 Ibid. 177 See cfr, Article 51(1). 178 J. Jones, ‘Human Dignity in the eu Charter of Fundamental Rights and its Interpretation before the European Court of Justice’ (2012) 33 Liverpool Law Review 296. 179 See Reception Conditions Directive, Recital 5 which states that ‘[t]his Directive seeks to ensure full respect for human dignity and to promote the application of Articles 1 and 18’. See also recast Reception Conditions Directive, Recitals 11, 35. 180 See Reception Conditions Directive, Recital 35.

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the cjeu, could have an impact also on other fields, such as for example the recognition of a right to minimum subsistence for irregularly staying migrants. 3.4.2 Provisions in the Recast Reception Conditions Directive: A Necessary But Insufficient Step Material reception conditions are defined in Article 2(g) and include housing, food, clothing and a daily expenses allowance. The Directive states the principle that these material reception conditions must be available from the moment the applicant makes his or her application for asylum. If we take a closer look to the developments in the recast instrument, we note that the recast Reception Conditions Directive contains a wording that slightly enhances asylum seekers rights compared to the previous version.181 Namely, Member States are to ensure that: ‘[m]aterial reception conditions provide an adequate standard of living for applicants, which guarantees their subsistence and protects their physical and mental health’.182 Member States are also to ensure that this standard of living is met in the specific situation of vulnerable persons, as well as in relation to the situation of persons who are in detention.183 Even though Member States remain free to include asylum seekers in the general system of social assistance, the Directive clearly envisions a separate support scheme for them. In order to safeguard against abuse, the recast also foresees that Member States may make the provision of all or some of the material reception conditions and health care subject to the condition that applicants do not have their own sufficient means to ensure their subsistence.184 If the applicants have sufficient resources, Member States may also ask them to cover, or contribute to, the cost of the material reception.185 Moreover, they may ask the asylum seeker for a refund if it transpires that she had sufficient means to cover material reception conditions and health care at the time when these basic needs were covered.186 In a different article, the Directive foresees the possibility for Member States to reduce or withdraw material reception conditions where an applicant has been in receipt of them while having concealed his or her own financial resources.187 181 Reception Conditions Directive, Article 13(2) reads: ‘Member States shall make provisions on material reception conditions to ensure a standard of living adequate for the health of applicants and capable of ensuring their subsistence’. 182 Recast Reception Conditions Directive, Article 17(2). 183 Ibid. 184 Recast Reception Conditions Directive, Article 17(3). 185 Recast Reception Conditions Directive, Article 17(4). 186 Ibid. 187 See Recast Reception Conditions Directive, Article 20(3) and below Section 3.5.

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In order to address divergences in standards when reception conditions were offered in terms of financial allowances, the original thinking of the Commission was to create a specific point of reference, namely, the amount of social assistance granted to nationals requiring similar assistance.188 Any departure from this standard would have to be duly justified.189 The strained national budgets in several Member States, as well as the uncertainty this has caused to national populations, made negotiations on this point particularly challenging. The majority of the European Parliament as well as Member States in the Council, resisted concrete references to national systems of social assistance. The final compromise leaves this issue largely to the discretion of Member States. It sets the benchmark of financial assistance to levels established by Member States, either by law or by practice, to ensure ‘adequate standards of living for nationals’.190 It is though explicitly stated that Member States may grant less favourable treatment to applicants compared to nationals, in particular where material support is partially provided in kind, or where the level(s), applied to nationals, aim to ensure a higher standard of living than that prescribed for applicants in the Reception Conditions Directive.191 This is reaffirmed by a Recital in the Directive that states that it is necessary that Member States determine the level of material support on the basis of ‘relevant references’.192 However, it goes on to highlight:193 ‘[t]hat does not mean that the amount granted should be the same as for nationals. Member States may grant less favourable treatment to applicants than to nationals as specified in this Directive’. Concretely, as the association with the amount of social assistance received by nationals can be easily departed from, this formulation does not seem to address sufficiently the problematic situation that has occurred in several Member States. In the uk, which has in any event opted out of the recast Directive, a single adult asylum seeker received in 2014 £5.23 per day to cover her ‘essential living needs’, an amount which represents only 51% a single adult’s income support payments.194 The basis for this differentiation is far from clear. 188 2008 rcd Commission Proposal (n 22), Article 17(5). 189 Ibid. 190 Recast Reception Conditions Directive, Article 17(5). 191 Ibid. 192 Recast Reception Conditions Directive, Recital 24. 193 Ibid. 194 See 2014 ewhc 1033 (Admin) Case No. CO/8523/2013 which quashed the decision of the Secretary of State not to raise the level of asylum support and Refugee Action, Summary

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3.5 Reduction or Withdrawal of Reception Conditions The Directive permits Member States to sanction a wide array of what is considered as deviant behaviour with reduction or even, in exceptional cases, withdrawal of reception conditions for asylum seekers who do not comply with procedural  or other rules. The compatibility of this provision with Member States’ human rights obligations is questionable; as reception conditions are designed to ­safeguard a standard of subsistence, reduction may lead to undue hardship.195 Contrary to the 2003 Directive, the provision now concerns only material reception conditions and not reception conditions in general, as it is clear from the amendments that were made at both the title and the text.196 Still, housing and food, meet applicants’ essential needs. In order to somewhat rationalize the system that had been established by the 2003 Directive, the Commission in its 2008 proposal, had foreseen amendments which would allow withdrawal of material reception conditions only in case of concealment of resources; in all other cases Member States would have been able to reduce, but not withdraw material conditions.197 Moreover, the Commission had deleted the possibility to either withdraw or reduce material reception conditions for cases of ‘late filing’ of an asylum claim.198 Finally, the Commission introduced an obligation for Member States to ensure subsistence under all circumstances.199 The Council did not receive these proposals favourably.200 Therefore, the 2011 amended Commission proposal adopted a different approach. It reintroduced the possibility to reduce or withdraw material reception conditions and deleted the obligation to ensure subsistence in all circumstances.201 However, it retained the deletion of the possibility to either withdraw or reduce material reception conditions for cases of ‘late filing’ of an asylum claim.202 Nevertheless, during the negotiations with the Council, the European Parliament tried to reintroduce some of the earlier Commission proposals.203 This is reflected in the final wording that was adopted. of the Judgment of Mr Justice Popplewell in Refugee Action v Secretary of State for the Home Department, handed down on 9 April 2014 (Refugee Action 2014). 195 Peek and Tsourdi (n 153). 196 Ibid. 197 See 2008 rcd Commission Proposal, Article 20. 198 Ibid. 199 See 2008 rcd Commission Proposal, Article 20(4). 200 See for example Council Doc. 8675/09 of 26 May 2009. 201 See 2011 rcd Amended Commission Proposal, Article 20. 202 Ibid. 203 See Council Doc. 12090/12 of 6 July 2012, 134–143.

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3.5.1 The Three Types of Circumstances Envisaged in the Recast Reception Conditions Directive The recast classifies various hypotheses under three broader categories: circumstances that permit reduction and only exceptionally withdrawal; circumstances that permit reduction or withdrawal and, finally, circumstances permitting only reduction. (i) Circumstances that Permit Reduction and Only Exceptionally Withdrawal The first paragraph of Article 20 lists three possible grounds for reduction or, in exceptional and duly justified cases, withdrawal of reception conditions. All of them are linked to infringements of procedural obligations. Namely, it refers to situations where an applicant: (a) abandons the place of residence determined by the competent authority without informing it or, if requested, without permission; or (b) does not comply with reporting duties or with requests to provide information or to appear for personal interviews concerning the asylum procedure during a reasonable period laid down in national law; or (c) has lodged a subsequent application as defined in Article 2(q) of Directive 2013/32/EU. The first ground relates to obligations linked with restrictions on the freedom of movement that could be placed on an asylum seeker according to Article 7 of the recast. The provision is at least partly repetitive as Article 7(3) of the recast already provides for the possibility to make the grant of reception conditions subject to actual residence in a designated place. Moreover, Article 28(1)(b) of the recast Asylum Procedures Directive stipulates that Member States may assume that an asylum seeker has implicitly withdrawn or abandoned his or her application for asylum if he or she had left his or her place of residence for a considerable period of time without permission or without reporting to the authorities. When an application is regarded as withdrawn or abandoned by the asylum seeker, the competent authority may discontinue the examination or reject the application. Consequently, the applicant falls outside the scope of the recast Reception Conditions Directive and loses her entitlement to reception conditions. The assumption that an applicant has abandoned their place of residence should only be made after a certain period of time has elapsed. Its length is not clearly defined but depends on the individual circumstances.204 204 Peek and Tsourdi (n 153).

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The second ground for reduction or, exceptionally, withdrawal refers to procedural obligations. Member States are to define under national law a period of time that leads to the sanctions foreseen by the Directive. The period of time that appears to be reasonable in terms of the Directive may depend on the obligation concerned as well as the stage of the procedure.205 The third ground relates to subsequent asylum applications. Given that withdrawal of material reception conditions for this category of applicants is an exceptional measure that needs to be objectively justified, national policies that exclude the entire class of asylum seekers who have filed a subsequent application from material reception conditions are to be understood as contravening the recast.206 (ii) Circumstances that Permit Reduction or Withdrawal There is only one such case that the recast Directive contemplates and that is namely where the applicant has concealed financial resources. Article 20(3) corresponds with Article 17(3) of the recast Directive that makes the provision of reception conditions subject to the lack of means by the applicant, or requires an asylum applicant with sufficient financial resources to contribute to their reception conditions. It is understandable that in this case the Directive permits withdrawal. Given that the asylum seekers possess sufficient means, they do not risk finding themselves destitute. (iii) Circumstances Permitting Only Reduction The recast Directive permits Member States only to reduce but not to withdraw reception conditions in cases of ‘late applications’. This provision has been largely modified. The 2003 Directive shifted the burden of proof to the asylum seeker who had to demonstrate that the claim was made ‘as soon as reasonably practicable’ after arrival.207 Such wording meant that many asylum seekers were confronted with an insurmountable hurdle, having for example serious difficulties to prove unrecorded irregular border crossings. The recast Directive reverses the burden of proof to Member States. It is now up to state authorities to establish that the applicant, ‘for no justifiable reason’ did not lodge the application as soon as reasonably practicable. 3.5.2 Sanctions Two forms of personal misconduct may lead to sanctions. Given that the recast Directive has detailed the different types of circumstances under which 205 Ibid. 206 S. Sarolea (ed), L. Tsourdi, La réception du droit européen de l’asile en droit belge: la directive accueil (ucl 2014) 134–138. 207 See Reception Conditions Directive, Article 16(2).

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reduction or withdrawal is foreseen, such sanctions cannot refer to reduction or withdrawal of material reception conditions, but entail other types of measures such as, for example, the transfer to a different accommodation facility, the exclusion of applicants from social activities in the accommodation centres, their exclusion from the possibility to conduct chores in the centre and be awarded additional income etc. Otherwise, the co-legislators would have classified them under one of the three broad categories that the Directive establishes, according to the perceived gravity of the misconduct, i.e. reduction or exceptionally withdrawal, reduction or withdrawal, or merely reduction. The classification of the rest of the circumstances was an object of intense negotiation, especially in what concerns withdrawal of material reception conditions, thus it is improbable, that this provision is a ‘carte blanche’ for the imposition of unqualified withdrawal, which is in fact otherwise only permitted in cases of dissimulation of financial resources. This interpretation is supported by the wording Article 20(5) which states that ‘decisions for reduction or withdrawal of material reception conditions or sanctions [..]’.208 This phrasing points to the fact that sanctions are something different than reduction or withdrawal of material reception conditions. The term ‘serious breaches of the rules of the accommodation centres’, remains rather vague as the rules themselves are not in any way part of the Directive and therefore vary considerably among the accommodation centres. Moreover, it is doubtful whether ‘serious’ refers to the action itself or whether it means that the infringement must be particularly obvious or notorious.209 Some clarification may be derived from the second ground for sanctions, i.e. ‘seriously violent behaviour’. Since both grounds are equivalently reasons for sanctions, it must be assumed that the personal behaviour that triggers these sanctions has to be of equivalent gravity as well.210 3.5.3 Procedural Guarantees All decisions on reduction or withdrawal of material reception conditions or  sanctions need to be taken individually, objectively and impartially. The Directive moreover stipulates that the competent authority should provide reasons for its decision. The latter requirement is of particular importance if an asylum seeker wants to appeal against such a decision. The possibility to appeal is guaranteed under Article 26 of the recast Directive. The recast states as well that decisions should be individualised, especially with regard to ­vulnerable 208 Emphasis added. 209 Peek and Tsourdi (n 153). 210 Ibid.

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persons. They must abide to the principle of proportionality. Hence, national authorities cannot resort to automatism when a situation factually falls under one of the circumstances described in this Article. Any decision on the reduction or withdrawal of reception conditions has to be a formal decision against which appeal is possible. Before such a formal and reasoned decision has been issued, reduction or withdrawal of reception conditions is inadmissible. 3.5.4 An Inderogable Minimum of Material Reception Conditions The Reception Conditions Directive stated that Member States should ‘under all circumstances ensure access to emergency health care’.211 The recast Directive establishes a fundamentally different standard. Namely, it stipulates that the following must be ensured under all circumstances: ‘access to health care in accordance with Article 19 and [..] a dignified standard of living for all applicants’.212 It is worth stressing that Article 19 of the recast clearly goes beyond emergency healthcare and includes essential treatment of illnesses and of serious mental disorder, as well as containing additional standards for applicants with special reception needs. In any case, as Article 20 now permits only the withdrawal or reduction of material reception conditions213 and not of reception conditions in general, this Article could not have constituted a basis to withdraw healthcare. Nevertheless, healthcare is not the only reception condition that needs to be ensured ‘under all circumstances’. The recast Directive demands in addition that a ‘dignified standard of living for all applicants’ is ensured. A ‘dignified standard of living’ goes beyond the provision of healthcare; this interpretation is also supported by the wording of the Directive which uses the adjunctive ‘and’. It is not absolutely clear what the content of this phrase is. The recast Directive uses the wording ‘dignified standard of living’ in its Recital 11 to describe the general aim of the instrument. The ecj in Saciri noted that: ‘[t]hose allowances must, however, be sufficient to meet the basic needs of asylum seekers, including a dignified standard of living […]’.214 It can therefore be reasonably assumed that accommodation and basic subsistence form an integral part of a ‘dignified standard of living’ that asylum applicants must enjoy ‘under all circumstances’, therefore constituting an inderogable standard. The provisions of the Directive could be potentially contradictory. It is clear  that when an applicant has dissimulated financial resources, material 211 212 213 214

See Reception Conditions Directive, Article 16(4). See Reception Conditions Directive, Article 20(5). See recast Reception Conditions Directive, Article 2. Saciri (n 164) para 48.

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reception conditions can be safely reduced or withdrawn, the asylum applicant having his or her own means to attain a ‘dignified standard of living’. However, in the rest of the circumstances where reduction or, in exceptional and duly justified cases, withdrawal of material reception conditions is contemplated, if the asylum seeker does not possess own means, it seems that withdrawal or reduction that would deprive her of a ‘dignified standard of living’ is not only contrary to obligations established in human rights instruments, but contrary to the Directive itself. 4

Overall Assessment

The contribution focused on five important areas of the recast Directive; this section macroscopically evaluates the entire instrument on the basis of three axons: adherence with fundamental rights; level of legal harmonisation and coherence between asylum instruments. In terms of adherence with fundamental rights, the recast Directive brought about moderate improvements, which largely take into account the evolving jurisprudence of Strasbourg and Luxembourg Courts in this area. Such an example is the explicit mention in the text of the recast Reception Conditions Directive of its applicability in territorial waters as well as transit zones, an element that was missing from the prior version of the Directive.215 Moreover, we mention, the explicit statement in the recast Directive that it applies to Dublin applicants and the reference to a dignified standard of living under all circumstances.216 Nevertheless, the instruments miss the opportunity to establish a ‘higher eu threshold’. Such would have been the case, for example, had the Commission’s proposal to entirely exclude the possibility for Member States to detain unaccompanied minors under any circumstance, been retained.217 Such a prohibition actually exists in a number of Member States; however, at eu level, the relevant provision was watered down during the negotiations.

215 Reflecting in this sense Amuur v France Appl no 19776/92 (ECtHR, 25 June 1996) and Riad and Idiab v Belgium Appl no 29787/03 and 29810/03 (ECtHR, 24 January 2008). 216 Reflecting respectively the principled interpretation of the cjeu in Cimade and Gisti (n 71) and Saciri, (n 164). 217 See European Commission, Proposal for a Directive of the European Parliament and of the Council laying down minimum standards for the reception of asylum seekers, com(2008)815 final, 12 March 2008, Article 11(1).

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In what concerns the level of harmonisation, it is certainly higher than that afforded by the previous legislative instrument. Several areas were specified, such as the instrument’s scope; ambiguities were addressed, such as the detailed regulation of detention grounds and detention conditions for asylum seekers; and procedural safeguards were established. Nevertheless, long-drawn negotiations, and the fact that the Commission had to issue an amended recast proposal in order to overcome the political impasse, led to the dilution of the level of legal clarity and undermined the harmonising potential of the recast instrument.218 Firstly, a number of exceptional clauses were either retained or introduced in the legal instrument, such as for example the possibility for Member States to derogate from the established detention conditions, or to the multitude of situations in which Member States are allowed to reduce, or exceptionally withdraw material reception conditions. Secondly, the instruments contain legally vague notions that allow considerable discretion to Member States to define the scope of their obligations. Some examples are the method by which the level of material reception conditions, when they are provided in the form of vouchers or financial allowances, is to be defined, or the level of health care that asylum applicants should enjoy. Finally, the instruments also include internal contradictions. A characteristic example is the pos­si­ bility for Member States to withdraw reception conditions, in cases other than  those involving concealment of financial resources by the applicant, while ensuring ‘under all circumstances’ a dignified standard of living for all applicants. Moreover, the debate on provisions that impact public finances, such as the level of material reception conditions and its relation to national social assistance schemes or access to the labour market219 was based to a great extent on political rather than on fact-based arguments. It is not clear to which side the scales would have tilted had such research and facts been introduced to the debate; the fact is that important policy decisions were made in their absence, based largely on speculation. Finally, the coherence between the recast Directive and other asylum instruments was strengthened. Increasingly, the asylum legal instruments can be properly understood if they are ‘read together’. Some examples of this trend 218 See also inside this volume the contribution of V. Chetail, ‘The Common European Asylum System: Bric-à-Brac or System?’. 219 See also M. Garlick, ‘Asylum-Seekers and People in Need of International Protection’ in E. Guild, S. Carrera and K. Eisele (eds), Social Benefits and Migration: A Contested Relation­ ship and Policy Challenge in the eu (ceps 2013) 62.

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are the provisions that now explicitly state the full applicability of the recast Reception Conditions Directive to applicants subject to Dublin procedures, as well as those that specify the applicability of the recast asylum instruments to applicants of subsidiary protection. Moreover, this is attested by the direct incorporation of the provisions on detention conditions and guarantees for detained asylum seekers in the recast Dublin Regulation. 5

Perspectives: An Emerging Right to a Minimum Level of Subsistence for Everyone?

Despite the missed opportunities, the recast Directive marks a step forward in ensuring a dignified standard of living for asylum seekers. These developments are important; as one author characteristically notes: ‘[i]nternational human rights law, although having a cosmopolitan promise, has allowed for the emergence of differentiated welfare systems and differentiated conditions of social assistance entitlement [..]’.220 The case of asylum seekers in the eu is no different; Member States vehemently continue to resist integration of asylum seekers in their national social assistance systems. Nevertheless, at the other end of this reality, a series of jurisprudential developments reveal a trend towards the gradual emergence of a right to minimum level of subsistence for everyone, regardless of their immigration status, drawing from the principle of human dignity and the prohibition of torture, inhuman or degrading treatment. Very concretely, such a right would entail the obligation for Member States to provide irregular migrants who are in their territory with a minimum level of subsistence until they either regularise their status, or return them to their country of origin of prior residence. It is important to stress that the issue is not settled yet. A first strand of relevant jurisprudence appeared in the ECtHR. The Strasbourg court has had to grapple with the contours of Article 3 echr, which prohibits torture, inhuman or degrading treatment, and in particular to assess whether the situation of individuals who are living in, or are to be returned to,  destitution or extreme poverty could fall under the scope of Article 3.221 220 L. Thorton, ‘Law, Dignity and Socio-Economic Rights: The Case of Asylum Seekers in Europe’ (2014) Draft paper presented at the European Database on Asylum Law (edal) Conference, January 2014 where the author analyses relevant international human rights provisions as well as the position of the international treaty monitoring bodies. 221 An extensive analysis of the relevant case-law of the Court goes beyond the scope of this contribution. However, see C. O’Cinneide, ‘A Modest Proposal: Destitution, State Respon­sibility

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Although the Court has explicitly stated that the Convention does not guarantee as such socio-economic rights,222 it has also clarified that: [t]he mere fact that an interpretation of the Convention may extend into the sphere of social and economic rights should not be a decisive factor against such an interpretation. There is no watertight division separating that sphere from the field of civil and political rights covered by the Convention.223 In Budina v Russia, a case that was inadmissible, the Strasbourg Court noted that: [t]he Court cannot exclude that State responsibility could arise for ‘treatment’ where an applicant, in circumstances wholly dependent on State support, found herself faced with official indifference when in a situation of serious deprivation or want incompatible with human dignity.224 In the case of mss v Belgium and Greece, the Court considered that the situation of an asylum seeker who, due to the inaction of the state, ‘[f]ound himself for several months, living in the street, with no resources or access to sanitary facilities, and without any means of providing for his essential needs’225 attained the level of severity required to fall within the scope of Article 3 of the Convention. In reaching this conclusion, the Court put specific emphasis on the fact that Greece had enacted national legislation in transposition of eu legislation, namely the Reception Conditions Directive, which created specific positive obligations towards asylum seekers.226 and the European Convention on Human Rights’ (2008) 5 ehrlr 583; M. Hesselman, ‘Sharing International Responsibility for Poor Migrants? An Analysis of Extra-territorial Socioeconomic human rights law’ (2013) 25(2) ejss 187; K. Wouters, International Legal Standards for the Protection from Refoulement (Intersentia 2009). 222 See Pancenko v Latvia Appl no 40772/98 (ECtHR, 28 October 1999). 223 Airey v Ireland Appl no 6289/73 (ECtHR, 9 October 1979) para 26. See also I. Leijten, ‘Defining the Scope of Economic and Social Guarantees in the Case Law of the ECtHR’ in E. Brems, J. Gerards (eds), Shaping Rights in the echr: The role of the European Court of Human Rights in Determining the Scope of Human Rights (cup 2014) 109. 224 Budina v Russia Appl no 45603.05 (ECtHR, 18 June 2009) (admissibility). 225 mss v Belgium and Greece (n 9) para 263. 226 See ibid para 250. In his contribution to this volume, Vedsted-Hansen convincingly argues that this is in line with the Court’s general method of interpretation in which various international standards suggesting European consensus on the matter at issue can provide

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This position was reaffirmed in the case of Tarakhel v Switzerland where the Court found a violation of Article 3 echr in relation to the transfer of a family from Switzerland to Italy in the framework of application of the recast Dublin Regulation.227 The Court concluded that: [w]hile the structure and overall situation of the reception arrangements in Italy cannot therefore in themselves act as a bar to all removals of asylum seekers to that country, the data and information set out above nevertheless raise serious doubts as to the current capacities of the system228 […] [w]ere the applicants to be returned to Italy without the Swiss authorities having first obtained individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together, there would be a violation of Article 3 of the Convention.229 In order to reach this conclusion, the Court upheld the reasoning adopted by the uk Supreme Court in em Eritrea which held that a thorough and individualised examination of the situation of the person concerned must be undertaken and that the enforcement of the removal order should be suspended should the risk of inhuman or degrading treatment be established, whether or not ‘systemic deficiencies’ exist.230 Such trends can also be discerned in the cjeu jurisprudence. The case at point is Abdida, which concerned a rejected asylum seeker who had applied in Belgium for regularisation on medical grounds, a national non-harmonised humanitarian status.231 Advocate General Bot in his opinion held that in this case the asylum instruments were not applicable. However, he went on to note that the applicant, who had filed a claim for regularisation on humanitarian

the interpretative basis if the scope and extent of Convention obligations appear unclear or in need of reconsideration; see J. Vedsted-Hansen, ‘Reception Conditions as Human Rights: Pan-European Standard or Systemic Deficiencies’. 227 Tarakhel v Switzerland (n 163) para 96. 228 Ibid para 115. 229 Ibid para 122. 230 See R (on the application of em (Eritrea)) (appellant) v Secretary of State for the Home Department (respondent) (2014) uksc 12. See also Tabrizagh and others v sshd (2014) ewhc 1914 (Admin). 231 Case C-562/13, Centre public d’action sociale d’Ottignies-Louvain-la-Neuve v Moussa Abdida (2014) eu:C:2014:2453.

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grounds, and his presence was de facto tolerated in Belgium, had found himself in the following situation:232 […] excluded from the regular job market, which means that he has no income to meet his needs and, in particular, to feed, clothe and house himself. He undoubtedly has serious problems finding accommodation. Indeed, it can be an offence to let to illegally staying migrants. Moreover, he has only partial access to social assistance since, under the national legislation applicable, such assistance is limited to the grant of emergency medical assistance. The Advocate General also observed that ‘[s]uch a state of affairs is clearly capable of rendering Mr. Abdida destitute and has a direct bearing on respect for his fundamental rights’.233 This led him to conclude very clearly the following:234 [t]he respect for human dignity and the right to life, integrity and health enshrined in Articles 1, 2, 3 and 35 of the Charter respectively, as well as the prohibition of inhuman or degrading treatment contained in Article 4 of that Charter, mean that, in a situation such as that in the main proceedings, an illegally staying third-country national whose removal has been de facto suspended must not be deprived of the means necessary to meet his basic needs pending the examination of his appeal. The Court was more cautious in its pronouncement. It limited its findings to the particular case of ‘a third country national suffering from a serious illness who has appealed against a return decision whose enforcement may expose him to a serious risk of grave and irreversible deterioration in his state of health’.235 It then, however, proceeded to a teleological interpretation of the Return Directive and ruled that for this particular case of irregularly staying migrants, Member States must suspend the transfer and consequently make available the guarantees pending return that are foreseen in the Return Directive in case of postponement.236 In what concerns specifically the obligation to provide 232 Opinion of Advocate General Bot in Case C-562/13, Centre public d’action sociale d’Ottignies-Louvain-la-Neuve v Moussa Abdida, (2014), not yet published, para 147. 233 Ibid para 148. 234 Ibid para 155. 235 Abdida (n 232) para 58. 236 Ibid. See also Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning

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‘emergency health care and essential treatment of illness’, the Court clarified that it would be ‘rendered meaningless if there were not also a concomitant requirement to make provision for the basic needs of the third country national concerned’.237 It stressed though that ‘it is for the Member States to determine the form in which such provision for the basic needs of the third country national concerned is to be made’.238 The Court therefore proceeded in an extensive interpretation of the requirement for Member States to provide emergency health care and essential treatment of illness reading into it an obligation to provide a minimum level of subsistence. Nevertheless, given the particulars of this case, it limited its findings to this specific class of irregular migrants, therefore those who contest their transfer on the basis of medical grounds. It will be interesting to see the position that the Court will adopt in the case of other categories of non-removable migrants, given that often Member States exclude them from the labour market, while at the same time failing to provide them with social assistance, other than a right to emergency healthcare, whose scope they interpret far more strictly than the cjeu did in Abdida. A final strand of relevant jurisprudence comes from the European Committee of Social Rights (ecsr). In two cases against the Netherlands, the Committee ruled on the situation of irregular migrants in that Member State, adopting, on the basis of the principle of human dignity, a contra legem interpretation of the scope of application of the Charter that excludes from its scope aliens who are not lawfully residing on the territory of a Party.239 The Committee recognised a right of emergency assistance to cope with an immediate state of need; it found that such a right entails ‘accommodation, food, emergency medical care and clothing’.240 These pronouncements met the resistance of the government of the Netherlands that raised the issue of good faith interpretation of a treaty that should not unilaterally impose completely new obligations upon States Party to the European Social Charter.241 .

illegally staying third-country nationals, oj L348/98 (Return Directive), Articles 9(1)(b) and 14. 237 Abdida (n 232) para 60. 238 Ibid para 61. 239 See European Federation of National Organisations working with the Homeless (feantsa) v the Netherlands, Complaint no 86/2012 (ecsr, 2 July 2014) and Conference of European Churches (cec) v the Netherlands, Complaint no 90/2013 (ecsr, 1 July 2014), rendered public in November 2014. 240 Ibid respectively at paras 171 and 105. 241 See Committee of Council of Europe, Committee of Ministers, Resolution CM/ResChS (2015)4, 15 April 2014.

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The decisions analysed in this section attest to the tension between States’ sovereignty and the right of every human being to human dignity as well as the prohibition of torture, inhuman and degrading treatment. Despite the continuing resistance of States and their tendency to create differentiated regimes, both the provisions of the recast Directive and the evolving jurisprudence seem to point to the slow emergence of an inderogable ‘right to a minimum level of subsistence’ for everyone. It remains to be seen whether this promise will be fulfilled.

chapter 11

Reception Conditions as Human Rights: Pan-European Standard or Systemic Deficiencies? Jens Vedsted-Hansen* 1

The Common European Asylum System Assumption of ‘Mutual Trust’

The numerous challenges against the Dublin System in recent years, curtailing and potentially undermining its functioning, can be seen as resulting from the  inherent dichotomy between core principles underlying the emerging Common European Asylum System (ceas). On the one hand, in official terms the European Union (eu) clearly intends to develop this system and the legal instruments of which it is composed in conformity with the international human rights obligations incumbent on Member States, not least the European Convention on Human Rights (echr) and the United Nations (un) Refugee Convention. Fundamental rights as set out in the eu Charter of Fundamental Rights are recognized by Article 6 of the Treaty on European Union (teu) which further restates that the rights guaranteed by the echr constitute general principles of eu law. More specifically, Article 78(1) of the Treaty on the Functioning of the European Union (tfeu) stipulates that the common policy on asylum, subsidiary protection and temporary protection must be in accordance with the un Refugee Convention and ‘other relevant treaties’, among which the echr obviously is an important one. The human rights basis of the ceas is further emphasised by Article 18 of the eu Charter of Fundamental Rights (cfr), stipulating that the right to asylum shall be guaranteed with due respect for the un Refugee Convention, and by Article 19 cfr that largely reflects the protection against removal, expulsion and extradition under Article 3 and Protocol 13 echr. On the other hand, the ceas is being established on the basis of an assumption of ‘mutual trust’ or ‘mutual confidence’ between Member States and their respective asylum systems. More generally, the notion of ‘mutual trust’ is considered as one of the foundations of eu harmonisation of law and policy on border control, asylum, immigration, judicial cooperation and police cooperation. Thus, the Stockholm Programme emphasises ‘mutual trust’ between * Professor of Law, University of Aarhus, Denmark.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004308664_012

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authorities, services and decision-makers in the different eu Member States as the basis for efficient cooperation and one of the important tools in order for this multiannual programme on the eu as an ‘area of freedom, security and justice’ to be successfully implemented during the period 2010–2014.1 Within the field of asylum harmonisation, the assumption of ‘mutual trust’ is particularly important to the Dublin System on the allocation of responsibility for examining applications for international protection between Member States, the rationale of which is precisely the confidence in all other Member States’ willingness and ability to provide requisite protection to persons claiming to need it.2 This is expressed in the preamble of the Dublin Regulation which, with reference to the European Council’s 1999 Tampere Conclusions setting the directions for the first phase of the ceas, states that ‘without affecting the responsibility criteria laid down in this Regulation, Member States, all respecting the principle of non-refoulement, are considered as safe countries for third-country nationals’.3 Even while the ‘safe country’ notion may here seem somewhat limited by the implicit interlinkage to the principle of ­non-refoulement, there is little doubt that the Dublin System is to be seen as based on the assumption that Member States can and should have confidence in each others’ asylum systems in the wider sense, including reception 1 European Council, The Stockholm Programme – An Open and Secure Europe Serving and Protecting the Citizens, oj C 115/1, 4 May 2010, para 1.2.1. It is here at the same time admitted that ‘[e]nsuring trust and finding new ways to increase reliance on, and mutual understanding between, the different legal systems in the Member States will thus be one of the main challenges for the future’. The 2014 strategic guidelines for legislative and operational planning within the area of freedom, security and justice similarly emphasise the full transposition and effective implementation of the ceas, rather optimistically stating that ‘[c] onverging practices will enhance mutual trust and allow to move to future next steps’, oj C 240/13, 24 July 2014, para 7. 2 See H. Battjes, European Asylum Law and International Law (Martinus Nijhoff Publishers 2006) 418–21; G. Noll, ‘Formalism v Empiricism: Some Reflections on the Dublin Convention on the Occasion of Recent European Case Law’ (2001) 70 Nordic Journal of International Law 162–64 and 181–82; P. Boeles, M. den Heijer, G. Lodder and K. Wouters, European Migration Law (2nd ed, Intersentia 2014) 260–61. 3 Recital 2 of Council Regulation 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, oj L 50/1, 25 February 2003 (Dublin ii Regulation); similarly, yet in slightly different wording, recital 3 of Regulation 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) oj L 180/31, 29 June 2013 (Dublin iii Regulation).

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conditions, examination procedures, definitions of persons in need of protection as well as standards of treatment for such persons. This was officially reflected in the Stockholm Programme’s proclamation of the eu as ‘a common area of protection and solidarity’4 and has been reconfirmed by the Court of Justice of the European Union (cjeu), as discussed below in Section 3. Before discussing the cjeu’s interpretive response to the issue of ‘mutual confidence’ underlying the Dublin Regulation, this chapter shall examine the challenges to the Dublin System that were in effect raised by the European Court of Human Rights (ECtHR) as the first judicial body at European level that was tasked with assessing the inherent discrepancy between the principle, or normative assumption, of confidence and the actual realities of the asylum system in certain Member States. While the key point of reference here has been the mss v Belgium and Greece judgment from 2011,5 it is worthwhile looking back at previous case law from the ECtHR as well as subsequent cases in which the Court dealt with similar issues, yet with an apparently differing approach that may be indicative of the extent to which the ECtHR is prepared to scrutinise the human rights implications of the ceas. This approach to judicial review of transfers under the Dublin Regulation may in turn be decisive as to whether there is going to be anything that can meaningfully be characterised as a pan-European human rights based standard on reception conditions for persons seeking international protection under the ceas. The main focus of the following will therefore be the way(s) in which the ECtHR has responded to allegations, in connection with disputed Dublin transfers, of Member States’ failure to comply with the eu standards on reception conditions for asylum seekers.6 4 Stockholm Programme (n 1) para 6.2: ‘The European Council remains committed to the objective of establishing a common area of protection and solidarity based on a common asylum procedure and a uniform status for those granted international protection. While ceas should be based on high protection standards, due regard should also be given to fair and effective procedures capable of preventing abuse. It is crucial that individuals, regardless of the Member State in which their application for asylum is lodged, are offered an equivalent level of treatment as regards reception conditions, and the same level as regards procedural arrangements and status determination. The objective should be that similar cases should be treated alike and result in the same outcome’ (emphasis added). 5 mss v Belgium and Greece Appl no 30696/09 (ECtHR, 21 January 2011). 6 Council Directive 2003/9 of 27 January 2003 laying down minimum standards for the reception of asylum seekers, oj L 31/18, 6 February 2003 (Reception Conditions Directive) and Directive 2013/33 of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast), oj L 180/96, 29 June 2013.

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Human Rights Responsibility for Dublin Transfers?

Defining the Principles of the European Court of Human Rights Approach to the Dublin System The basic position on the compatibility of the Dublin System7 with Member States’ obligations under the echr was made clear by the ECtHR as early as in 2000. In the case of ti v uk the applicant alleged that returning him to Germany under the Dublin Convention would expose him to the risk of indirect refoulement as he feared that the German authorities would send him further back to Sri Lanka. As his asylum request had already been rejected in Germany, the applicant argued that, were the United Kingdom (uk) authorities to return him to Germany, he would be unable to obtain any rehearing of his asylum claims due to the strict procedural standards excluding consideration of evidence which had been previously available but not submitted to the courts. The uk Government urged the ECtHR to be ‘slow to find that the removal of a person from one Contracting State to another would infringe Article 3 of the Convention’ as the applicant would, if any problems arose, have recourse to the ECtHR itself, including the possibility of applying for a Rule 39 indication to suspend his deportation.8 The ECtHR apparently disregarded this allusion to the potential remedy consisting in yet another case before the Court itself. Instead, focusing exclusively on the risk of indirect refoulement to Sri Lanka, the Court noted that the applicant was not threatened with any treatment contrary to Article 3 in Germany, whereas his removal to Germany under the Dublin Convention was one link in a possible chain of events which might result in his return to Sri Lanka. Such removal to an intermediary country, also a Contracting State to the echr, would not, however, affect the responsibility of the uk to ensure that the applicant was not, as a result of its decision to expel, exposed to treatment contrary to Article 3. Nor could the uk rely automatically in that context on the arrangements made in the Dublin Convention concerning the attribution of responsibility between European countries for deciding asylum claims:

2.1

Where States establish international organisations, or mutatis mutandis international agreements, to pursue co-operation in certain fields of activities, there may be implications for the protection of fundamental 7 At the time, the system was based on the Convention of 15 June 1990 determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities (Dublin Convention), oj C 254/1, 19 August 1997. 8 ti v United Kingdom Appl no 43844/98 (ECtHR, 7 March 2000) 12.

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rights. It would be incompatible with the purpose and object of the Convention if Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution […]. The Court notes the comments of the [United Nations High Commissioner for Refugees] unhcr that, while the Dublin Convention may pursue laudable objectives, its effectiveness may be undermined in practice by the differing approaches adopted by Contracting States to the scope of protection offered.9 While the ECtHR thus firmly established the principle on State responsibility irrespective of the allocation of responsibility among eu Member States for the examination of asylum requests under the Dublin Convention, the Court took a somewhat cautious approach in scrutinising the actual risk of indirect refoulement of the applicant in case of his Dublin transfer to Germany. Apparently accepting his alleged risk of ill-treatment if removed to Sri Lanka, the Court put significant trust in the prospect of his asylum request being reconsidered upon return to Germany, quoting ‘the assurances given by the German Government concerning its domestic law and practice’. At the same time, the Court admitted the possibility of rejection of his claim on re-examination of the case by the German authorities and consequent removal, yet this was ‘largely a matter of speculation and conjecture’.10 As a result, the application was considered manifestly ill-founded and thus rejected by the Court as inadmissible.11 2.2 Principle and Reality: Establishing Normative Presumptions On its next opportunity to take a principled position on the Dublin System, almost nine years later, the ECtHR demonstrated caution in a somewhat different manner. The application in krs v uk went well beyond the allegation of risk of indirect refoulement from Greece upon return under the Dublin ii Regulation inasmuch as it was argued and amply evidenced that reception conditions for asylum seekers in Greece were highly problematic, in addition to the uncertainty about access to the asylum procedure and to effective remedies for rejected asylum seekers, in particular for those returned to Greece according to

9 10 11

Ibid 15. Ibid 17–18. For a critical account of the ECtHR’s ‘empirical’ approach, focusing on the actual prospect of protection in Germany, while trusting the German assurances and taking a lenient approach to questionable interpretation of Article 3 echr at the time, see Noll, ‘Formalism v Empiricism’ (n 2) 176–80.

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the Dublin ii Regulation.12 Already the uk Court of Appeal had in leading judgments in 2008 on Dublin returns to Greece admitted that there were concerns about the conditions in which asylum seekers might be detained in Greece, but discarded these concerns as it had not been ‘shown that they give rise to systematic violations of Article 3’ and as there were no reports of unlawful refoulement from Greece to any destination, the latter seeming ‘to be critical’ as to compliance with the uk’s echr obligations.13 Again in the krs case the ECtHR rejected the application as manifestly illfounded. This was done without any detailed review of the conditions of detention or other reception conditions for asylum seekers in Greece. The Court focused mainly on the risk of indirect refoulement, paying little attention to the information presented on the reception of asylum seekers in Greece. On both issues the Court’s reasoning seems to be at variance with the basic responsibility principle pronounced in the ti decision. It first noted that the Dublin Regulation had been ‘created within the framework of the “third pillar” of the European Union’ and that returning an asylum seeker to another Member State according to the criteria set out in the Regulation, as proposed in the present case, would be ‘the implementation of a legal obligation on the State in question which flows from its participation in the asylum regime created by that Regulation’.14 While these statements seem to be, at the very least, questionable from an eu law perspective, the Court further observed that ‘the asylum regime so created protects fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance’.15 12

13

14 15

krs v United Kingdom Appl no 32733/08 (ECtHR, 2 December 2008) 11–12, quoting a 2008 report from the European Committee for the Prevention of Torture with rather alarming findings on detention conditions for asylum seekers, and a 2008 position paper from the unhcr pointing to the failures by Greece to implement eu standards on asylum procedures and reception conditions. Ibid 9. Thus, the uk ruling apparently suggested that the ‘real risk’ test under Article 3 echr could be replaced by a threshold of ‘systematic violations’, a reformulation that might be seen as a precursor to subsequent ECtHR cases (see below Section 2.4). Ibid 16. Ibid 16. Apart from the imprecise reference to the eu ‘third pillar’ the ECtHR here seems to be alluding to the ‘Bosphorus doctrine’ on the presumption of equivalent protection under eu law, see Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v Ireland Appl no 45036/98 (ECtHR, 30 June 2005). Whereas the Court itself took issue with the relevance of this doctrine to the application of the Dublin ii Regulation in the judgment mss v Belgium and Greece (n 5) paras 338–40 (see n 28 below), no express consideration of the issue was made in the krs decision. However, the Court’s line of reasoning in this decision suggests that it may have been inspired or influenced by this doctrine as implicit

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Against this background it may not be surprising that the Court discarded the claims submitted by krs in order to prevent his Dublin return to Greece, primarily focusing on the alleged risk of indirect refoulement. Referring to ‘the evidence before it’ the Court held that Greece did not ‘currently remove people to Iran’ and again reasoned that the Dublin Regulation is one of a number of measures agreed in the field of asylum policy at the European level and must be considered alongside Member States’ additional obligations under Directive 2005/85 and Directive 2003/9 to ‘adhere to minimum standards in asylum procedures and to provide minimum standards for the reception of asylum seekers’.16 Thus, the Court held that ‘[t]he presumption must be that Greece will abide by its obligations under those Directives’,17 in which connection it also took note of information about a new legislative framework for asylum applicants in Greece, provided to the Court in letters by the agent of the Greek Government through the uk Government agent. Notably, the Court at the same time stated that if Greece were to recommence removals to Iran, the Dublin Regulation itself would allow the uk to exercise their right to examine asylum applications under Article 3(2) of the Regulation.18 As regards the protection against indirect refoulement, the Court further stated that ‘from the standpoint of the Convention’ there was nothing to suggest that persons returned to Greece under the Dublin Regulation would run the risk of onward removal to a third country contrary to Article 3 echr without being afforded a real opportunity of applying to the Court for a Rule 39 measure to prevent such removal from Greece. In the absence of information on this issue from the Greek Government, in spite of the Court’s request, the Court here relied on ‘assurances’ obtained by the uk Government agent from the Greek authorities.19 This information was substantiated by the Court recalling that ‘Greece, as a Contracting State, has undertaken to abide by its Convention obligations’ and was therefore required to make the right of any returnee to lodge an application with the ECtHR under Article 34 echr and request interim measures under Rule 39 both practical and effective. In the absence of any proof to the contrary, it ‘must be presumed that Greece will

16 17 18

19

justification of its presumption of compliance by Greece with the eu asylum directives, as discussed below. krs v United Kingdom (n 12) 17. Ibid 17 (emphasis added). Ibid 17. The latter statement may seem somewhat contradictory to the Court’s previous assumption of a ‘legal obligation’ to return asylum seekers under the Dublin Regulation, quoted above at n 14. Ibid 17.

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c­ omply with that obligation in respect of returnees including the applicant’,20 and his complaints under Articles 3 and 13 echr arising from his possible expulsion to Iran should therefore be the subject of a Rule 39 application lodged with the Court against Greece following his return there, and not against the uk. This line of reasoning may not be easily reconciled with the principle pronounced in the ti decision, according to which it would be ‘incompatible with the purpose and object of the Convention if Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution’ under the Dublin System.21 The presumption-based approach, as well as the substitution of potential remedies against Greece for the uk’s primary responsibility under the Convention, was similarly applied to the applicant’s complaint concerning reception conditions in Greece. On this aspect the Court briefly stated: Finally, in the Court’s view, the objective information before it on conditions of detention in Greece is of some concern, not least given Greece’s obligations under Council Directive 2003/9/EC and Article 3 of the Convention. However, for substantially the same reasons, the Court finds that were any claim under the Convention to arise from those conditions, it should also be pursued first with the Greek domestic authorities and thereafter in an application to this Court.22 The krs decision has frequently been considered relatively unimportant since it was overruled by the ECtHR Grand Chamber judgment in mss v Belgium and Greece (see below Section 2.3). Nonetheless, in the light of the ECtHR’s approach in Dublin cases subsequent to the mss judgment (see below Section  2.4) it is  worthwhile noting the Court’s rather evident tendency towards limiting its review on the basis of an express presumption of compliance with eu standards in the krs decision – or, as succinctly stated by Cathryn Costello, ‘krs evidences the abandonment of scrutiny to blind trust’.23 This was not least apparent in the 20 21 22 23

Ibid 18 (emphasis added). ti v United Kingdom (n 8) 15. krs v United Kingdom (n 12) 18. C. Costello, ‘Courting Access to Asylum in Europe: Recent Supranational Jurisprudence Explored’ (2012) 12 hrlr 320. For similar reasons the ‘triumph of formal arguments over practical evidence’ has been said to be the most distinctive trace of the Court’s decision in the krs case, due to its ‘disinclination to accord any value to general country information, emerging from multiple and reliable sources corroborating the applicant’s claim’, see v. Moreno-Lax, ‘Dismantling the Dublin System: M.S.S. v. Belgium and Greece’ (2012) 14 ejml 16.

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absence of serious examination of the complaint concerning reception conditions, as illustrated above. 2.3 Breaking the Illusion, Rebutting the Presumption of Compliance The optimistic judicial presumptions reflected in the krs decision from 2008 were brought to an end with the ECtHR judgment in mss v Belgium and Greece24 which made it clear that responsibility for returning asylum seekers under the Dublin Regulation may be incurred by the transferring Member State not only because of the risk of indirect refoulement, but also due to serious shortcomings in the legal and social conditions in the receiving Member State. On both accounts the decisive issue will be whether it is foreseeable to the transferring Member State that the asylum seeker is at real risk of being exposed to treatment contrary to Article 3 echr upon transfer to the Member State responsible for examining the asylum request according to the criteria laid down in the Dublin Regulation. First, on the basis of its well-established principles of responsibility for exposing persons to ill-treatment under Article 3 echr, the ECtHR found Greece in violation of Article 3 due to the degrading detention conditions,25 as well as due to the absence of any measures to cover the basic needs of mss during the asylum procedure.26 Furthermore, the deficiencies in the Greek asylum procedure and the resultant risk that the applicant might have been returned to Afghanistan without any serious examination of his asylum application, and without having access to an effective remedy in Greece, were held to be a violation of Article 13 echr on the requirement of effective remedies, taken in conjunction with Article 3.27 As an expression of the extraterritorial application of Article 3 echr to Belgium, the Member State having returned the applicant to Greece, the Court considered that the Belgian authorities knew or ought to have known that the applicant would have no guarantee that his asylum application would be seriously examined by the Greek authorities, as a result of which the transfer from Belgium to Greece under the Dublin Regulation had given rise to a violation of Article 3 by Belgium.28 The Court 24 25 26 27 28

mss v Belgium and Greece (n 5). Ibid paras 216–34. Ibid paras 249–64. Ibid paras 286–322. Ibid paras 338–61. Before examining the merits of this part of the complaints, the Court addressed the issue of Member State responsibility under the echr when implementing eu law, holding that the Dublin ii Regulation differed from the eu rules contested in Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v Ireland (n 15) in that Belgium could, under the ‘sovereignty clause’ in Article 3(2) of the Regulation, have refrained from transferring the applicant if that Member State had considered that Greece as the receiving

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further held Belgium to have violated Article 3 echr because this Member State, by transferring the applicant to Greece, had knowingly exposed him to conditions of detention and living conditions that amounted to degrading treatment under Article 3.29 While the mss judgment has generally been considered as a landmark ruling in terms of its wider consequences for the emerging ceas, the discussion here is going to be delimited to the ECtHR’s approach to assessing the reception conditions in Greece as the Member State responsible under the Dublin criteria, and the implications of the judgment and the ECtHR’s reasoning as regards the standards on reception conditions. The violation by Greece of Article 3 echr due to the applicant’s conditions in detention was rather unsurprising, given the Court’s previous findings in cases concerning conditions in Greek prisons and other detention facilities.30 As regards the issue of positive obligations in the area of socio-economic conditions, the Court set out by reiterating the general principles under Article 3 and pointed out that Article 3 cannot be interpreted as obliging the High Contracting Parties to provide everyone within their jurisdiction with a home, nor does Article 3 entail any general obligation to provide financial assistance to refugees in order to enable them to maintain a certain standard of living.31 Contrary to this general interpretation, the Court then explained why such obligations under Article 3 may become more demanding in the context of the reception of asylum seekers in eu Member States: The Court is of the opinion, however, that what is at issue in the instant case cannot be considered in those terms. […] the obligation to provide

29

30

31

Member State was not fulfilling its obligations under the echr. Consequently, the measure taken by the Belgian authorities did not ‘strictly fall within Belgium’s ­international legal obligations’ and the presumption of equivalent protection under eu law therefore did not apply, see para 340. mss v Belgium and Greece (n 5) paras 362–68. In addition, Belgium had violated the echr due to lack of procedural safeguards within the Belgian procedure for examining asylum applications, as the prevailing system at the time was held to be incompatible with the requirement of effective remedies under Article 13 in conjunction with Article 3 echr, ibid paras 385–97. Thus, in its recapitulation of general principles pertaining to conditions of detention, the Court referred explicitly to recent case law on detention facilities for asylum seekers and irregular migrants in Greece, see ibid para 222 with reference to sd v Greece Appl no 53541/07 (ECtHR, 11 June 2009), Tabesh v Greece Appl no 8256/07 (ECtHR, 26 November 2009) and aa v Greece Appl no 12186/08 (ECtHR, 22 July 2010), all finding degrading treatment in violation of Article 3. Ibid para 249 with reference to Chapman v United Kingdom Appl no 27238/95 (ECtHR, 18 January 2001) para 99; and Müslim v Turkey Appl no 53566/99 (ECtHR, 26 April 2005) para 85.

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accommodation and decent material conditions to impoverished asylum seekers has now entered into positive law and the Greek authorities are bound to comply with their own legislation, which transposes Community law, namely Council Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers in the Member States […]. What the applicant holds against the Greek authorities in this case is that, because of their deliberate actions or omissions, it has been impossible in practice for him to avail himself of these rights and provide for his essential needs. The Court attaches considerable importance to the applicant’s status as an asylum seeker and, as such, a member of a particularly underprivileged and vulnerable population group in need of special protection […]. It  notes the existence of a broad consensus at the international and European level concerning this need for special protection, as evidenced by the Geneva Convention, the remit and the activities of the unhcr and the standards set out in the Reception Directive. That said, the Court must determine whether a situation of extreme material poverty can raise an issue under Article 3. The Court reiterates that it has not excluded the possibility “that State responsibility [under Article 3] could arise for ‘treatment’ where an applicant, in circumstances wholly dependent on State support, found herself faced with official indifference when in a situation of serious deprivation or want incompatible with human dignity” (see Budina v Russia (dec.), no 45603/05, 18 June 2009). It observes that the situation in which the applicant has found himself is particularly serious. He allegedly spent months living in a state of the most extreme poverty, unable to cater for his most basic needs: food, hygiene and a place to live. Added to that was the ever-present fear of being attacked and robbed and the total lack of any likelihood of his situation improving. It was to escape from that situation of insecurity and of material and psychological want that he tried several times to leave Greece.32 Against this general normative background, the Court examined the applicant’s experience and concluded that his situation as being homeless and without access to the labour market had lasted since his transfer to Greece in June 2009, and that it was linked to his status as an asylum seeker and to the fact that his asylum application had not yet been examined by the Greek authorities as of January 2011. In the light of this, and in view of the obligations incumbent on Greece under the Reception Conditions Directive, the Court 32

Ibid paras 250–54 (emphasis added).

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considered that the Greek authorities had not had due regard to the applicant’s vulnerability as an asylum seeker and must be held responsible, because of their inaction, for the situation in which he had found himself for several months, living in the street, with no resources or access to sanitary facilities and without any means of providing for his essential needs. The Court considered that he had been victim of humiliating treatment showing a lack of respect for his dignity, and that this situation had aroused in him feelings of fear, anguish or inferiority capable of inducing desperation. Such living conditions, combined with the prolonged uncertainty and the total lack of any prospects of his situation improving, had attained the level of severity required to fall within the scope of Article 3 echr.33 The Court’s reasoning as far as reception conditions in Greece are concerned is noteworthy for three reasons in particular. First, the eu standards laid down in the Reception Conditions Directive were applied as a basis for interpreting Article 3 echr so as to imply positive obligations of a socio-economic nature that could normally not be derived from this provision. This is as such in line with the Court’s general method of interpretation in which various international standards, either binding or even ‘soft law’ standards, as well as any other norms or evidence suggesting European consensus on the matter at issue can provide the interpretive basis if the scope and extent of Convention obligations appear unclear or in need of reconsideration.34 In this case the interpretation of Article 3 was based on consensus merely among the eu Member States and thus indirectly made the ECtHR enter into the role as part of the judicial system for the enforcement of eu  law at least within the ceas regulatory field. Importantly, though, the Court did so while at the same time referring to Greek legislation as part of the ‘positive law’ under which there is an obligation to provide accommodation and decent material conditions to asylum seekers. Like the com­ parative method of interpretation, the obligation of Convention States to act in compliance with their own domestic legislation is also well in line with the Court’s general approach to reviewing the effective application of the echr.35 33 34

35

Ibid paras 262–63. On the ‘dually comparative’ method of interpretation applied by the ECtHR, see I.E. Koch and J. Vedsted-Hansen, ‘International Human Rights and National Legislatures – Conflict or Balance?’ (2006) 75 Nordic Journal of International Law 11–13. See also J. Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (Martinus Nijhoff Publishers 2009) 57–66; B. Rainey, E. Wicks and C. Ovey, Jacobs, White and Ovey: The European Convention on Human Rights (6th ed, Oxford University Press 2014) 76–79. See J. Vedsted-Hansen in P. Lorenzen and others (eds), Den Europæiske Menneskerettigheds­ konvention med kommentarer [echr Commentary] (3rd ed, djøf Publishers 2011) 7­ 01–704 with references to ECtHR case law concerning Article 8 echr.

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Second, having to assess the applicant’s allegations about his experience upon transfer back to Greece, the Court took note of the existing general information on the situation for asylum seekers in that country, including reports from the Council of Europe Commissioner for Human Rights, the unhcr, and non-governmental organisations. This information was seen as evidence that the situation described by the applicant was existing on a large scale and was the ‘everyday lot’ of a large number of asylum seekers with the same profile as the applicant, and therefore the Court found no reason to question the truth of his allegations.36 The facts so established were accepted as the basis of the Court’s assessment of the treatment to which the applicant had been subjected, with no particular emphasis being attributed to the Greek Government’s assertion that the applicant was responsible for his own situation and the fact that he might, under Greek law, have been entitled to access the labour market in order to provide for his basic needs. The formal existence of such legislation was accepted by the Court, but discarded since ‘the reports consulted reveal that in practice access to the job market is so riddled with administrative obstacles that this cannot be considered a realistic alternative’.37 As the third noteworthy aspect of the ECtHR’s examination and assessment of the situation in which the applicant had found himself upon transfer to Greece, no reference was made by the Court to any ‘systemic’ or ‘systematic’ nature of the deficiencies in the Greek asylum procedure nor in the reception system for asylum seekers. Undoubtedly in line with realities, the Court did allude to the notion of systemic nature of the situation, yet only when it came to the application of Article 46 echr where it explained that in certain particular situations it may be considered useful to indicate to the respondent State the type of measures that might be taken in order to ‘put an end to the – often systemic – situation that gave rise to the finding of a violation’.38 Thus, the ‘systemic’ criterion was part of the Court’s reasoning on the urgent need to put a stop to the violations of Articles 13 and 3 by imposing on Greece the obligation to examine without delay the merits of the applicant’s asylum request and to refrain from deporting him pending the outcome of that examination. The term ‘systematic’ appears a number of times in the judgment, mostly in order to describe the systematic nature of detaining asylum seekers in Greece, and it is only used by the Court itself in this connection39 as well as 36 37 38

39

mss v Belgium and Greece (n 5) para 255. Ibid para 261 (emphasis added). Ibid para 399. In addition, the term was used in the separate opinion by Judge Sajó in connection with his assessment of a ‘systemic problem in the Belgian deportation procedure resulting in the violation of Article 13’. Ibid para 226 (‘the systematic placement of asylum seekers in detention’).

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in characterising the Belgian practice of applying the Dublin Regulation to transfer asylum seekers to Greece.40 In other words, there is no suggestion in the mss judgment that the finding of a violation of Article 3 echr due to transfer of asylum seekers under the Dublin Regulation be contingent on the Court formally establishing the systemic or systematic nature of the deficiencies in the asylum procedure or the reception conditions of the receiving Member State. As will be illustrated in Section 2.4 below, this threshold only entered into the ECtHR’s approach to Dublin transfer cases subsequent to the ns and me ruling by the cjeu later in 2011.41 Redefining the Threshold for Violations of the European Convention on Human Rights Greece is not the only eu Member State whose compliance with ceas standards on asylum procedures and reception conditions has been questioned.42 As a result, problems similar to those examined by the ECtHR in the mss judgment have been presented before the Court in subsequent cases concerning Dublin transfers to Italy. In the first of these cases brought before the Court certain particularities in the applicants’ conduct towards the Italian asylum system may arguably have made their complaints less suitable for an overall assessment of the asylum procedure or the reception conditions for asylum seekers in Italy. While the Court’s decisions may therefore first and foremost have been based on the specific circumstances presented before the Court by these individual applicants, the ECtHR nonetheless made more general statements that may inevitably be seen as reflecting a shift in the approach to reviewing Member State compliance with the ceas standards. 2.4

40

41

42

Ibid para 352 (‘systematically applied the Dublin Regulation to transfer people to Greece without so much as considering the possibility of making an exception’), briefly restated in para 366. Joined Cases C-411/10 and C-493/10 ns v Secretary of State for the Home Department and me and Others v Refugee Application Commissioner, Minister for Justice, Equality and Law Reform, ecli:eu:C:2011:865, discussed in Section 3 below. For additional examples pertaining to other Member States, see unhcr, Bulgaria as a Country of Asylum. unhcr Observations on the Current Situation of Asylum in Bulgaria, 2 January 2014; unhcr, Refugee Situation Bulgaria. External Update, 20 January 2014, 7 February 2014, 21 February 2014, 6 March 2014, and 21 March 2014; unhcr, Bulgaria as a Country of Asylum. unhcr Observations on the Current Situation of Asylum in Bulgaria, April 2014; Asylum Information Database (aida), National Country Report. Malta, Updated version, May 2014; for a general overview, see aida, Not There Yet: An ngo Perspective on Challenges to a Fair and Effective Common European Asylum System, Annual Report 2012/2013, chapter iii.

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2.4.1 Introduction of ‘Systemic Failure’ Test under Article 3 of the European Convention on Human Rights In the first ECtHR case concerning Dublin transfer to Italy, complaints were brought against Italy as well as the Netherlands which had decided to return the applicant to Italy.43 While the applicant initially complained that she had not been enabled to apply for asylum in Italy, and that she had not been provided with reception facilities for asylum seekers and had been forced to live on the streets in Italy, she later admitted in response to the facts submitted to the Court by the Italian Government that she had actually been granted subsidiary protection according to the Qualification Directive. Furthermore, upon entry into Italy in August 2008 she had been transferred to a reception centre, registered as an asylum seeker, and provided with reception facilities, including medical care. In October 2008 she had been provided with a temporary residence permit as an asylum seeker, and upon being provided with a residence permit valid for three years as well as an Italian travel document for aliens in March 2009, she had left the reception centre in April 2009.44 In May 2009 she applied for asylum in the Netherlands which rejected the application, considering Italy responsible for the examination of the case according to the Dublin ii Regulation. She applied to the ECtHR which issued a decision on interim measures under Rule 39 a few days before the date for which the applicant’s transfer to Italy had been scheduled. Noting the discrepancies between the facts submitted by the applicant and the Italian Government, the Court considered it unnecessary to examine the question of whether the application was deliberately grounded on a description of facts omitting or distorting events of central importance, as the application was in any event manifestly ill-founded and should therefore be declared inadmissible.45 This conclusion was based on reasoning pertaining both to the actual treatment of the applicant while in Italy and to the Netherlands’ considerations on her return to Italy under the Dublin Regulation. In the former assessment the Court observed important differences from its findings in the mss judgment in that the applicant in the present case had actually been provided with reception facilities for asylum seekers in an Italian reception centre, she had been allowed to work, and she had been granted a residence permit for subsidiary protection so that her request for international protection had been accepted about five months after her arrival in Italy. In addition, there 43 44 45

Samsam Mohammed Hussein and Others v the Netherlands and Italy Appl no 27725/10 (ECtHR, 2 April 2013). Ibid para 63, see also paras 4–6 and 24. Ibid para 64.

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was no indication that the applicant ever sought assistance in finding work or alternative accommodation either within or outside the scope of special public or private social assistance schemes established in Italy for vulnerable persons in order to avoid the risk of destitution or homelessness. Against this background, the Court did not find it established that the applicant’s treatment in Italy, either as an asylum seeker or as having been accepted as a person in need of international protection, could be regarded as having attained the minimum level of severity required for treatment to fall within the scope of Article 3 echr.46 As regards the Netherlands’ responsibility for the prospective transfer of the applicant to Italy, the ECtHR referred to the reports from both governmental and non-governmental institutions and organisations on the reception schemes for asylum seekers in Italy and made the following statement: […] while the general situation and living conditions in Italy of asylum seekers, accepted refugees and aliens who have been granted a residence permit for international protection or humanitarian purposes may disclose some shortcomings […] it has not been shown to disclose a systemic failure to provide support or facilities catering for asylum seekers as members of a particularly vulnerable group of people, as was the case in mss v Belgium and Greece […]. The reports drawn up by the unhcr and the Commissioner for Human Rights refer to recent improvements intended to remedy some of the failings and all reports are unanimous in depicting a detailed structure of facilities and care to provide for the needs of asylum seekers […]. The Court would also note the manner in which the applicant was treated upon her arrival in Italy in August 2008, in particular that her request for protection was processed within a matter of months and accommodation was made available to the applicant along with access to health care and other facilities. Against this background, the Court considers that the applicant has not shown that her future prospects if returned to Italy, whether taken from a material, physical or psychological perspective, disclose a sufficiently real and imminent risk of hardship severe enough to fall within the scope of Article 3 […].47 By apparently setting the disclosure of systemic failure in the reception conditions of the Member State of transfer as the evidentiary requirement for finding a violation of Article 3 echr, the Court here essentially redefined the 46 47

Ibid paras 72–75. Ibid para 78 (emphasis added).

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threshold for protection against refoulement under this provision. The wellestablished test of ‘substantial grounds’ for assuming ‘real risk’ of ill-­treatment appears to have been replaced by a requirement that the applicant be able to provide evidence based on ‘systemic failure’ of the reception system and disclosing a ‘sufficiently real and imminent risk’ of hardship severe enough to fall within the scope of Article 3. Such a redefinition of the evidentiary requirement as well as the level of risk is in principle tantamount to a revised interpretation of Article 3 in extraterritorial situations and would therefore seem to call for an explanation, in line with the ECtHR’s general practice in  connection with cases involving questions of reinterpretation of the Convention.48 2.4.2 In Search of the Origin of the ‘Systemic Failure’ Test In the absence of the Court’s own explanation of the underlying reasons for this apparent shift in the approach to reviewing prospective transfers under the Dublin Regulation, it is rather obvious to assume that the ECtHR may have been somewhat inspired by the cjeu ruling discussed below in Section 3, precisely applying the ‘systemic deficiency’ threshold for violation of Article 4 cfr.49 As a kind of intermediary source of inspiration, it is noteworthy that the ECtHR further quotes a uk judgment from 2012 that appears to be building on the same cjeu ruling. Here the Court of Appeal for England and Wales suggested that the cjeu judgment in ns and me had ‘set a threshold in Dublin ii and cognate return cases which exists nowhere else in refugee law’, supposedly requiring the claimant to ‘establish that there are in the country of first arrival “systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers […which] amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment […]”’.50 According to the uk court, this should be taken to imply the following evidentiary standard to be transferred to the application of Article 3 echr:

48

See, as prominent examples, Christine Goodwin v United Kingdom Appl no 28957/95 (ECtHR, 11 July 2002) paras 73–75, and Stec and Others v United Kingdom Appl nos 65731/01 and 65900/01 (ECtHR, 6 July 2005) paras 44–53. 49 See Samsam Mohammed Hussein and Others v the Netherlands and Italy (n 43) para 28, quoting extensively from ns and me (n 41). 50 em (Eritrea) and Others v the Secretary of State for the Home Department [2012] ewca Civ 1336, para 61, quoted in Samsam Mohammed Hussein and Others v the Netherlands and Italy (n 43) para 55.

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In other words, the sole ground on which a second state is required to exercise its power under article 3(2) Regulation 343/2003 to entertain a re-application for asylum or humanitarian protection, and to refrain from returning the applicant to the state of first arrival, is that the source of risk to the applicant is a systemic deficiency, known to the former, in the latter’s asylum or reception procedures. Short of this, even powerful evidence of individual risk is of no avail.51 Even while the ECtHR did not specifically address the normative impact of the cjeu ruling, nor the intermediary interpretation of this ruling by the uk court, it is hard to find the reason for such extensive quotations from these judgments were it not meant to indicate the rationale of the ECtHR’s own application of the ‘systemic failure’ test in the case at hand. The absence of any further reasoning by the ECtHR in this regard is the more conspicuous as the uk court had actually added a thoughtful, yet potentially disturbing, remark on the threshold just suggested as the ‘sole ground’ for being protected against return under the Dublin Regulation, by admitting that ‘what amounts to a systemic deficiency must to a considerable degree be a matter of judgment, perhaps even of vocabulary’.52 Taken at surface value, the ‘systemic failure’ test introduced by the ECtHR in the Samsam Mohammed Hussein decision seems to be at variance with the general principles of Member State responsibility for transfers of asylum seekers under the Dublin System that were pronounced by the Court in the ti decision in 2000 and confirmed and clarified in the mss judgment in 2011. Although requiring the applicant to disclose ‘systemic failure’ in the reception system of the Member State of prospective transfer is not in itself identical with the operation of a presumption of compliance in line with the krs decision from 2008, it does in effect come close to such a presumption by setting a significantly higher threshold for the rebuttal of the mutual confidence that was indeed the cjeu’s rationale in focusing on the issue of ‘systemic deficiencies’ as the basis of protection against return according to Article 4 cfr. As will be discussed in Section 3 below, the framework and approach of this cjeu position is, however, quite different from that of the ECtHR. 2.4.3 Towards Systematic Application of the ‘Systemic Failure’ Test The ECtHR continued to apply its ‘systemic failure’ test in a number of subsequent decisions in 2013 concerning Dublin transfers of asylum seekers to Italy. 51 52

Ibid para 62 (emphasis added). Ibid para 63.

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Some of these cases were, more or less similar to the Samsam Mohammed Hussein case discussed above, marked by certain particularities in the applicants’ conduct towards the Italian asylum system. Thus, the applicants in the Daytbegova and Magomedova case had never applied for asylum in Italy and therefore did not have any ‘first-hand experience of being hindered in lodging an asylum request or of finding any other obstacles to access thorough asylum proceedings on the merits of their claims’.53 Against this background, the Court turned to the general information available on the legal and practical situation of the asylum procedure in Italy, referring ‘first and foremost to the Italian Government’s observation that the applicants will be able to lodge formal asylum applications with the competent authorities in Italy on their return there’.54 While not disregarding the criticism raised in various reports concerning factual obstacles to the lodging of asylum applications in Italy, the Court found that the information available did not point to the conclusion that ‘those singular incidents amount to such a systemic failure as was the case in mss v Belgium and Greece […]’.55 The same applied to the reports concerning shortcomings of the general situation and living conditions for asylum seekers in Italy, and the Court therefore established that there was ‘no indication in the applicants’ submissions or deriving from the general information available that the applicants would not be able to access sufficiently thorough asylum proceedings upon their arrival in Italy or that the reception schemes failed in such a way to provide support or facilities for asylum seekers as members of a particularly vulnerable group of people’.56 Considering the severe psychological health issues of the second applicant and noting that a particularly well planned reception might be necessary upon the second applicant’s return to Italy, including access to adequate housing and medical and psychological care, the Court again referred to the general information on the reception system for asylum seekers in Italy, the Italian Government’s observations and its own ‘trust’ that the Austrian authorities would, in case of the applicants’ transfer to Italy, provide the Italian authorities with ‘all the most recent medical and psychological documentation available to them, to ensure that the applicants are adequately and appropriately received there’.57 Although the latter might be seen as alluding to yet another 53 54 55 56 57

Daytbegova and Magomedova v Austria Appl no 6198/12 (ECtHR, 4 June 2013) para 66. Ibid para 66. Ibid para 66. Ibid para 66 (emphasis added), referring to Samsam Mohammed Hussein and Others v the Netherlands and Italy (n 43) para 78. Ibid paras 67–69.

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presumption, here pertaining to the modalities of the Austrian authorities’ actual implementation of the prospective transfer of the applicants to Italy, the Court unanimously rejected the application as manifestly ill-founded.58 The applicant in the Halimi case had previously been transferred from Austria to Italy under the Dublin Regulation, and as he later returned to Austria and reapplied for asylum there, it turned out that he had not applied for asylum in Italy, neither had he done so upon his first entry into Italy.59 Under these circumstances, noting that the applicant had not taken any steps to become an asylum seeker in Italy, the ECtHR held that Italy’s responsibility could not be engaged on account of the fact that the applicant had not been given access to the reception schemes for asylum seekers.60 Also the complaint against Austria, due to the intention to once again transfer the applicant to Italy, was rejected by a majority of the Court as manifestly ill-founded. Here again ‘not disregarding the criticism raised in various reports concerning de facto obstacles to the lodging of asylum applications in Italy’, the Court found that the information available did not point to the conclusion that ‘those singular incidents amount to such a systemic failure as was the case in mss v Belgium and Greece […]’.61 The Court took the same approach to the reports concerning shortcomings of the general situation and living conditions for asylum seekers in Italy. As regards the applicant’s special needs due to his ­tender age and psychological impairments, the Court was further ‘assuming a  comprehensive handover of relevant information on the applicant’ from the Austrian authorities to the Italian authorities in the event of his transfer to Italy.62 In the Abubeker case, similarly rejected by the ECtHR majority as manifestly ill-founded, the situation was different in that the applicant had requested asylum in Italy and had been granted a residence permit on the basis of subsidiary protection.63 As the Court considered him to have decided voluntarily to leave the reception facility and later another housing and support system in Italy, his alleged situation as homeless without subsistence and food was held not to result from the legal system in Italy or from a practical situation caused by that 58

59 60 61 62 63

As the applicants were thus considered to have no ‘arguable complaint’ under Article 3 echr, their additional complaint under Article 13 was rejected as manifestly ill-founded too, ibid para 72. Nasib Halimi v Austria and Italy Appl no 53852/11 (ECtHR, 18 June 2013) paras 6, 10–12, and 62. Ibid paras 64–65. Ibid para 68. Ibid para 74. Mohammed Abubeker v Austria and Italy Appl no 73874/11 (ECtHR, 18 June 2013) paras 5–8.

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Member State.64 As regards Austria’s intention to transfer the applicant to Italy under the Dublin Regulation, the Court referred to information about the possibility to renew residence permits previously issued by Italy. Given his ‘manifestly and seriously impaired mental health status’, the Court found itself able to establish that the applicant would be eligible for special consideration by the Italian authorities as a vulnerable person upon return to Italy, once again ‘assuming a comprehensive handover of relevant information on the applicant’ in the event of his transfer.65 Still, noting the shortcomings of the general situation and living conditions for asylum seekers, refugees and aliens with a residence permit, the Court found that it had ‘not been shown that the Italian reception schemes demonstrate a systematic failure to provide support or facilities catering for asylum seekers as members of a particularly vulnerable group of people’.66 As the ‘systemic failure’ test was applied by the ECtHR in additional cases in 2013 concerning the prospective transfer of asylum seekers to Italy according to the Dublin Regulation,67 this seems to have been about to be established as the Court’s general approach to the review of transfers under the Dublin Regulation. It may safely be assumed that it was the Chamber decision in September 2013 to relinquish jurisdiction in favour of the Grand Chamber in the Tarakhel case68 that apparently caused the Court to refrain from further processing of applications challenging Dublin transfers to Italy, and thus from potentially reconfirming the ‘systemic failure’ test in such cases. 64 65 66

67

68

Ibid paras 59–62. Ibid paras 70 and 73. Ibid para 72 (emphasis added). Although being issued by the same ECtHR section composed of the same judges on the same date as the Halimi decision discussed above, this decision refers to ‘systematic failure’ rather than ‘systemic failure’, yet probably reflecting an identical approach to reviewing the performance of the Italian reception system. Hannibal Miruts Hagos v the Netherlands and Italy Appl no 9053/10 (ECtHR, 27 August 2013) para 38 (unanimous, concerning reception conditions); Naima Mohammed Hassan and Others v the Netherlands and Italy Appl no 40524/10 and others (ECtHR, 27 August 2013) para 176 (unanimous, concerning reception conditions); Nuur Hussein Diirshi and Others Appl no 2314/10 and others (ECtHR, 10 September 2013) para 138 (unanimous, concerning reception conditions for both minor and adult asylum seekers), all referring to Samsam Mohammed Hussein and Others v the Netherlands and Italy (n 43) para 78. Tarakhel v Switzerland Appl no 29217/12 (ECtHR, 4 November 2014). It has to be noted that the Chamber deciding to relinquish jurisdiction was, apart from the judge elected in respect of Italy, composed of different judges than those examining the cases on Dublin transfers to Italy discussed above in Sections 2.4.1 and 2.4.3, see ibid para 5. The Tarakhel judgment is discussed in Section 4 below.

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A similar approach was applied, nonetheless, in a 2014 judgment concerning the transfer of an asylum seeker to Hungary according to the Dublin Regulation, in which the ECtHR – in addition to noting that there was no systematic detention of asylum seekers in Hungary anymore – concluded that the relevant country reports did not indicate ‘systematic deficiencies’ in the Hungarian asylum and asylum detention system. However, as a reflection of more concrete assessment it was added that the applicant therefore would currently not be at a real, individual risk of being subject to treatment contrary to Article 3 echr.69 It is also interesting to note that the Court did not apply the ‘systemic failure’ criterion in two ‘post-mss’ cases concerning Dublin transfers of asylum seekers from Austria to Greece that had taken place in October 2008, November 2008 and April 2009. Instead, in justification of these disputed transfers a short time before the transfer of mss from Belgium to Greece took place in June 2009, it was stated that while the Court considered it ‘established that in spring 2009 the Austrian authorities would have been aware of the serious deficiencies in the Greek asylum procedure and the living and detention conditions for asylumseekers, it [did] not find it established that, all circumstances considered, the Austrian authorities ought to have known that those deficiencies had reached the threshold required by Article 3’.70 3

An Emerging eu Norm on Non-Transfer under the Dublin Regulation

The Court of Justice of the European Union Balancing Between Confidence and Deficiencies As mentioned above, the criterion ‘systemic deficiency’ as an element in assessing the compatibility with fundamental rights of the transfer of an asylum seeker to another Member State under the Dublin Regulation was first introduced by the cjeu in its preliminary ruling in December 2011 on questions of interpretation that originated from cases in the uk and Ireland concerning Dublin transfers to Greece, raising issues under eu law in addition to

3.1

69

70

Mohammadi v Austria Appl no 71932/12 (ECtHR, 3 July 2014) paras 74–75 (the applicant’s request for referral to the Grand Chamber was rejected by the Grand Chamber Panel on 17 November 2014, see ECtHR Press Release 338 (2014)). Safaii v Austria Appl no 44698/09 (ECtHR, 7 May 2014) para 50. Similar reasons were given in Sharifi v Austria Appl no 60104/08 (ECtHR, 5 December 2013) para 38.

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those examined by the ECtHR in the mss judgment in January 2011.71 As a result of the two cases referred for preliminary ruling on the interpretation of the Dublin ii Regulation and the eu Charter of Fundamental Rights, the cjeu significantly modified the impact of that Regulation, at least at the level of general interpretation. The implications of the cjeu ruling for the more concrete application of the Dublin Regulation may seem less clear, however. As it appeared from Section 2.4 above, the ECtHR certainly has had difficulties in drawing the adequate conclusions from this cjeu ruling, and the same seems to have occurred in certain domestic courts in Member States. Among the questions referred to the cjeu by the Court of Appeal of England and Wales was whether the obligation to observe eu fundamental rights precludes the operation of a conclusive presumption that the responsible Member State will observe the asylum seeker’s fundamental rights under eu law and the minimum standards imposed by Directives 2003/9,72 2004/8373 and 2005/85.74,75 In addition, the High Court of Ireland had asked whether the transferring Member State is obliged to assess the compliance of the receiving Member State with Article 18 cfr and the same Directives as well as the Dublin ii Regulation.76 At the outset, the very relevance of obligations under the eu Charter of Fundamental Rights to Member States when applying the Dublin Regulation in such situations was confirmed by the Court. In response to a question referred by the Court of Appeal, the cjeu held that the decision by a Member State on the basis of the discretionary provision in Article 3(2) of the Dublin ii Regulation whether to examine an asylum application, which is not its responsibility according to the criteria in Chapter iii of the Regulation, implements eu law for the purposes of Article 6 teu and Article 51 cfr.77 Thus, Member States are bound to respect the rights and observe the principles of the Charter when taking and enforcing such decisions on Dublin transfers.

71 72 73

74

75 76 77

ns and me (n 41). Reception Conditions Directive (n 6). Council Directive 2004/83 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, oj L 304/12, 30 September 2004 (Qualification Directive). Council Directive 2005/85 of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, oj L 326/13, 13 December 2005 (Asylum Procedures Directive). ns and me (n 41) paras 50 and 71 (question 3 in case C-411/10). Ibid paras 53 and 70 (question 1 in case C-493/10). Ibid paras 68–69.

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As regards the questions pertaining to observance of eu fundamental rights in the context of operating the Dublin Regulation, the cjeu stated that according to settled case law Member States must not only interpret their national law in a manner consistent with eu law, but also make sure they do not rely on an interpretation of secondary eu legislation that would be in conflict with the fundamental rights protected by the eu legal order.78 Against that background it considered the various, potentially opposing, principles and interests to be kept in mind when applying the Dublin Regulation in situations where compliance by the Member State of prospective Dublin transfer with the fundamental rights laid down in the Charter, and with the minimum standards of the ceas instruments of secondary legislation, is disputed. On the one hand, the cjeu emphasised the underlying rationale of the ceas and pointed to the principle of ‘mutual confidence’ that was considered to be of critical importance to the functioning of the common system: Consideration of the texts which constitute the Common European Asylum System shows that it was conceived in a context making it possible to assume that all the participating States […] observe fundamental rights, including the rights based on the Geneva Convention and the 1967 Protocol, and on the echr, and that the Member States can have confidence in each other in that regard. It is precisely because of that principle of mutual confidence that the European Union legislature adopted Regulation No 343/2003 […] in order to rationalise the treatment of asylum claims and to avoid blockages in the system as a result of the obligation on State authorities to examine multiple claims by the same applicant, and in order to increase legal certainty with regard to the determination of the State responsible for examining the asylum claim and thus to avoid forum shopping, it being the principal objective of all these measures to speed up the handling of claims in the interests both of asylum seekers and the participating Member States. In those circumstances, it must be assumed that the treatment of asylum seekers in all Member States complies with the requirements of the Charter, the Geneva Convention and the echr.79 On the other hand, the cjeu held that it is not ‘inconceivable that that system may, in practice, experience major operational problems in a given Member 78 79

Ibid para 77. Ibid paras 78–80 (emphasis added).

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State, meaning that there is a substantial risk that asylum seekers may, when transferred to that Member State, be treated in a manner incompatible with their fundamental rights’. From this, however, it cannot be concluded that any infringement of a fundamental right by the Member State responsible for examining an asylum application will affect the possibility to transfer the asylum seeker to that Member State in accordance with the Dublin Regulation.80 In support of this statement the Court again referred to the principle of ‘mutual confidence’ underlying the adoption of the Dublin Regulation and the other ceas instruments, and the creation of the eu as an ‘area of freedom, security and justice’ more generally: At issue here is the raison d’être of the European Union and the creation of an area of freedom, security and justice and, in particular, the Common European Asylum System, based on mutual confidence and a presumption of compliance, by other Member States, with European Union law and, in particular, fundamental rights. In addition, it would […] not be compatible with the aims of Regulation No 343/2003 were the slightest infringement of Directives 2003/9, 2004/83 or 2005/85 to be sufficient to prevent the transfer of an asylum seeker to the Member State primarily responsible. Regulation No 343/2003 aims – on the assumption that the fundamental rights of the asylum seeker are observed in the Member State primarily responsible for examining the application – to establish […] a clear and effective method for dealing with an asylum application […].81 In order to identify the situations in which the principle of ‘mutual confidence’ will have to be modified for the sake of respecting the rights and observing the principles of the eu Charter of Fundamental Rights, the cjeu introduced the ‘systemic flaws’ or ‘systemic deficiencies’ criterion. Thus, the Court stated that transfer of asylum seekers under the Dublin Regulation would be incompatible with Article 4 cfr if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment within the meaning of Article 4 cfr of asylum seekers transferred to the territory of that Member State.82 Having referred to the situation prevailing in Greece and the ECtHR findings in the mss judgment earlier in 2011, the cjeu 80 81 82

Ibid para 82. Ibid paras 83–84 (emphasis added). Ibid para 86.

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added that the extent of the infringement of fundamental rights described in that judgment showed that there existed in Greece, at the time of the transfer of the applicant, a systemic deficiency in the asylum procedure and in the reception conditions of asylum seekers.83 It was therefore concluded by the cjeu that the presumption underlying the ceas and the various legislative instruments that asylum seekers will be treated in compliance with fundamental rights in all Member States has to be regarded as rebuttable: […] European Union law precludes the application of a conclusive presumption that the Member State which Article 3(1) of Regulation No 343/2003 indicates as responsible observes the fundamental rights of the European Union. Article 4 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the Member States, including the national courts, may not transfer an asylum seeker to the ‘Member State responsible’ within the meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision.84 The Threshold of Violations of the eu Charter of Fundamental Rights: ‘Systemic’ or ‘Substantial’? While the cjeu thus in its ns and me ruling made the existence of ‘systemic deficiencies’ in the Member State primarily responsible for examining an asylum request under the Dublin Regulation a criterion in assessing the fundamental rights compatibility of transferring the asylum seeker, it is at the same time apparent that this term was used by the Court in order to identify the ­situations in which Member States must be aware of the potential violation of fundamental rights in case of transfer: when they cannot be unaware of ‘systemic deficiencies’ in the asylum procedure or the reception conditions in the Member State of prospective transfer, such deficiencies may amount to substantial grounds for assuming a real risk of inhuman or degrading treatment. As stated by the uk Supreme Court in a 2014 judgment, the focus of the cjeu is on the Member States’ awareness of systemic deficiencies that provide 3.2

83 84

Ibid para 89. Ibid paras 105–106 (emphasis added).

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substantial grounds for believing that there is a real risk of inhuman or degrading treatment. In the two cases that had been referred to the cjeu, the existence of systemic deficiencies, as extensively reported by the unhcr and other organisations, was the means by which the transferring Member States were deemed to have that knowledge, but ‘there is nothing in the reasoning of the cjeu nor is there […] any reason in logic to suggest that, if the transferring state acquires the same knowledge through a different medium, that it should not have the same effect’.85 This is indeed supported by the fact that the cjeu, when introducing the ‘systemic deficiencies’ criterion, referred to the situation prevailing in Greece at the time of transfer of the applicant mss, thus indicating that the extent of the infringement of fundamental rights described by the ECtHR in the mss judgment showed the existence at that time of systemic deficiencies in the Greek asylum procedure and the reception conditions of asylum seekers.86 As it appears from the quotation above, the cjeu indicated ‘systemic deficiencies’ in the asylum procedure and in the reception conditions as the relevant criterion. In line with the reading of the judgment here proposed, it is nonetheless assumed that these are not meant to be cumulative criteria, and that deficiencies in either of the two elements of a Member State’s asylum system will be sufficient as a means of establishing awareness of the potential existence of substantial grounds for assuming a real risk of ill-treatment of Dublin transferees in that Member State. If deficiencies of such systemic nature exist in a given Member State, and the other Member States know or ought to know, i.e. ‘cannot be unaware’ of them, then the latter will be under the obligation to assess, on the basis of the information available, whether these deficiencies actually amount to substantial grounds for assuming that asylum seekers will face a real risk of ill-treatment upon transfer to the actual Member State.87 Thus, the cjeu cannot be assumed to have introduced the ‘systemic deficiencies’ criterion as an alternative to the traditional ‘real risk’ test under Article 3 echr that presumptively applies under Article 4 cfr as well.88 This test is further in line with the term ‘serious risk’ used in the express prohibition 85

86 87 88

R (on the application of em (Eritrea)) v Secretary of State for the Home Department [2014] uksc 12, judgment of 19 February 2014, para 57 (Lord Kerr). As an alternative reading of the ‘systemic deficiencies’ test, it was proposed that this term may refer to the ceas in its entirety, as opposed to operational problems in a particular Member State, ibid paras 51–53. ns and me (n 41) para 89. See Costello, ‘Courting Access to Asylum in Europe’ (n 23) 330. Ibid at 331.

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of refoulement in Article 19 (2) cfr, while the alternative criterion would be hard to reconcile with this provision. Rather, the existence of ‘systemic deficiencies’ was meant to serve as an indication of certain situations that call for awareness because they are likely to trigger considerations as to whether the ‘presumption of compliance’ has to be rebutted. Whether or not that is the case will still be contingent on the existence of – or, in the cjeu’s wording, whether the ‘systemic deficiencies’ amount to – substantial grounds for assuming a real risk of ill-treatment of the asylum seeker in the Member State of prospective transfer. Thus, the cjeu arguably upheld the well-established threshold for the non-refoulement obligation under Article 3 echr, including the necessity to consider individual factors as well as systemic and other general factors of potential relevance to the assessment of the risk of violation of Article 3 echr and Article 4 cfr. The cjeu has restated ‘systemic deficiencies’ as the relevant criterion in two subsequent rulings concerning asylum seekers attempting to have their requests examined in a specific Member State by avoiding transfer to the Member State otherwise responsible under the Dublin Regulation. In contrast to the ns and me ruling, the two cases were not directly concerned with the threshold for protection against refoulement under Article 4 cfr. Rather, the cases concerned the impact of such protection on the Member State that is prevented from transferring the asylum seeker to the Member State initially identified as responsible under the Dublin Regulation, either in terms of the former Member State maintaining the right to establish the responsibility of an alternative Member State according to the criteria of the Regulation,89 or whether the asylum seeker so protected against transfer could challenge, by invoking the legal remedy under Article 19(2) of the Dublin ii Regulation, the identification by the Member State in which he is located of such an alternative Member State as responsible for the examination.90 The two 2013 rulings will therefore not be further discussed in this context. 3.3 Scope and Proliferation of the ‘Systemic Deficiencies’ Test As indicated in Section 2.4, the ‘systemic deficiencies’ criterion introduced by the cjeu in the ns and me ruling has inspired the judicial approach to reviewing the compatibility of Dublin transfers with human rights obligations at both domestic and international level. The somewhat unexplained application of the ‘systemic failure’ test in the line of ECtHR decisions on prospective transfers to Italy under the Dublin Regulation from April until September 2013 is a 89 90

Case C-4/11 Bundesrepublik Deutschland v Kaveh Puid, ecli:eu:C:2013:740, para 36. Case C-394/12 Shamso Abdullahi v Bundesasylamt, ecli:eu:C:2013:813, para 62.

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rather striking example of less thoughtful, not to say mechanical transfer of legal concepts and criteria from one judicial context to another one. In addition to the substantive problems with this essentially redefined threshold for protection against refoulement under Article 3 echr, as discussed above, it should be noted that there seems to have been insufficient awareness within the ECtHR, as well as in domestic courts that adopted the ‘systemic failure’ test in Dublin cases, of the functional difference between these judicial bodies and the cjeu. Whereas the latter, in line with its structural position and competence within the eu legal system, was answering the questions referred concerning the interpretation of eu law, and thus inherently focusing on abstract interpretive issues relating to the application of eu law at the domestic level, the ECtHR had to examine allegations of human rights violations in the concrete cases before it. Admittedly, some of these cases were raising difficult evidentiary issues because the applicants had not yet been transferred to Italy and the risk of ill-treatment inherent in the prospective Dublin transfer was therefore bound to be assessed on a merely prognostic basis. In any event, the ECtHR has already well-established principles guiding the assessment of evidence in cases concerning extraterritorial risk of ill-treatment. In the Dublin cases here discussed the ECtHR was in possession of documentation on the conditions for asylum seekers in Italy that went well beyond what is often used as a basis for examining cases concerning alleged risk of refoulement under Article 3 echr, quantitatively as well as qualitatively. This seems to illustrate the inappropriateness of the ECtHR importing the notion of ‘systemic deficiencies’ as pronounced by the cjeu and applying it as the ‘systemic failure’ criterion in its examination of Dublin transfer cases under Article 3 echr, with no further reflections on the relevance, let alone the substantive meaning, of this criterion as compared to the traditional ‘real risk’ test in extraterritorial Article 3 cases. At the domestic level, the ‘systemic deficiencies’ criterion appears to have caused some confusion, probably due to its unclear meaning and function in the various parts of European law that had to be applied in domestic decisions. Thus, the 2012 judgment of the Court of Appeal for England and Wales,91 which probably inspired the ECtHR in its admissibility decisions in 2013 applying the ‘systemic failure’ test, was set aside by the uk Supreme Court in February 2014 in a judgment characterised by very principled reasoning, taking issue with the Court of Appeal’s approach to the test under Article 3 echr, and a very

91

em (Eritrea) and Others (n 50) para 61, quoted in Samsam Mohammed Hussein and Others v the Netherlands and Italy (n 43) para 55 (see Section 2.4.2 above).

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thorough examination of the ‘systemic deficiencies’ criterion introduced in the 2011 cjeu ruling.92 Also the German courts seem to have had trouble in coming to terms with this criterion. The German Federal Administrative Court has twice ruled that ‘systemic deficiencies’ in the asylum procedure or the reception conditions are a precondition for the rebuttal of the presumption of compliance with ceas standards and fundamental rights in the Member State of prospective Dublin transfer.93 By contrast, lower administrative courts in Germany have ruled against the return of asylum seekers to Italy, at least in one case finding that ‘systemic deficiencies’ exist in the reception conditions for asylum seekers which constitute substantial grounds for believing that the applicant would run a real risk of inhuman or degrading treatment within the meaning of Article 4 cfr.94 Had the ECtHR not decided to reconsider its approach to the Dublin transfer cases by leaving it to the Grand Chamber to examine the Tarakhel case, the unclear interaction between the cjeu and the ECtHR, and the somewhat ­confusing role of certain domestic courts in this context, might have resulted in  accepting – or possibly even reinforcing – existing differences between Member States’ reception conditions for asylum seekers, rather than promoting a ­pan-European standard and securing conformity between the eu standards, as actually implemented, and the relevant fundamental rights. The possibility of such a development would seem to be connected to the fact that applying ‘systemic failure’ as the exclusive basis of finding any risk of ­ill-treatment capable of preventing transfer under the Dublin Regulation could ultimately be tantamount to a de facto irrebuttable presumption of compliance with ceas standards as well as fundamental rights by all Member States. It cannot be excluded that the adoption of the express provision in Article 3 (2) of the Dublin iii Regulation, dealing with situations of impossibility to transfer an asylum seeker to the Member State responsible under the general criteria because of ‘substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in 92 93 94

R (on the application of em (Eritrea))(n 85), partly quoted by the ECtHR Grand Chamber in the Tarakhel judgment, para 52 (see Section 4 below). Bundesverwaltungsgericht, judgments of 19 March 2014 (BVerwG 10 B 6.14), reconfirmed in judgment of 6 June 2014 (BVerwG 10 B 35.14). Frankfurt Administrative Court, judgment of 9 July 2013, quoted by the ECtHR Grand Chamber in the Tarakhel judgment, para 51. Notably, the ECtHR here only refers to this and two other 2013 judgments as ‘relevant German case-law’, i.e. omitting the Federal Administrative Court’s judgments mentioned in the previous note.

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that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter’ may have added to the confusion as regards the threshold for protection against refoulement under Article 3 echr and Article 4 cfr. Nonetheless, even if Article 3 (2) of the Dublin iii Regulation is to be interpreted as conditioned on the existence of ‘systemic flaws’, that will only affect the scope of application of this mandatory provision, while the discretionary provision in Article 17 of the Dublin iii Regulation – corresponding to the ‘sovereignty clause’ in Article 3 (2) of the Dublin ii Regulation that was the basis of the 2011 rulings by the ECtHR as well as the cjeu – will still enable Member States to comply to the full extent with their obligations under the eu Charter of Fundamental Rights as well as the echr. 4

Towards Enforcement of a Pan-European Standard on Reception Conditions?

4.1 Rehabilitation of the ‘Real Risk’ Test The influence of the cjeu’s interpretation of the Dublin Regulation on the ECtHR decisions on Dublin transfers may seem enigmatic insofar as the sources and reasoning behind the redefined test in the examination of complaints under Article 3 echr were never specified by the ECtHR. Neither has the precise mean­ ing of the ‘systemic deficiencies’ criterion, as slightly rephrased by the ECtHR as ‘systemic failure’ or ‘systematic failure’, been clarified or further detailed in the cases that were examined and eventually rejected as inadmissible by the ECtHR under this test. In addition to the questionable reinterpretation of Article 3 echr, this approach is arguably based on a misperception of the meaning and function of the ‘systemic deficiencies’ criterion as introduced by the cjeu in the ns and me ruling. Against this background, the ECtHR Grand Chamber judgment in the Tarakhel case has been awaited in wide circles in order to provide clarity not only on the Court’s assessment of the current situation in the Italian reception system for asylum seekers, but also on its more general approach to reviewing cases concerning transfer under the Dublin Regulation. The applicants in this case were a couple and their six minor children, asylum seekers from Afghanistan who, after living in Iran for 15 years, had travelled via Turkey to Italy. Having been subjected to the Eurodac identification procedure and placed in a reception facility for 10 days, they were transferred to a reception centre within the Italian cara system. As they considered the living conditions here poor, particularly on account of the lack of appropriate sanitation facilities, lack of privacy and a climate of violence, they left the centre and

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travelled to Austria. Having been accepted for transfer from Austria to Italy they travelled on to Switzerland. As they were once again subjected to the Dublin procedure, and their transfer was tacitly accepted by Italy, they brought their case before the ECtHR, arguing that such transfer in the absence of ­individual guarantees as to how they would be taken charge of would be in violation of Articles 3 and 8 echr due to the risk of being left without accommodation or being accommodated in inhuman or degrading conditions. Notably, in support of their complaint the applicants expressly invoked the existence of ‘systemic deficiencies’ in the reception conditions for asylum seekers in Italy.95 The ECtHR Grand Chamber appears to have been cautious in using the term ‘systemic’ in the Tarakhel judgment. Nowhere in its reasoning does the Court apply the previously introduced ‘systemic failure’ test, and the term ‘systemic deficiencies’ is only mentioned as part of the Court’s considerations when referring to the parties’ submissions and the cjeu ruling in ns and me, as well as a number of times in the partly dissenting opinion of three judges.96 Instead, the Grand Chamber expressly restates the line of reasoning that had been adopted by the ECtHR in the 2011 mss judgment: In order to examine this complaint the Court considers it necessary to follow an approach similar to that which it adopted in the mss judgment, cited above, in which it examined the applicant’s individual situation in the light of the overall situation prevailing in Greece at the relevant time. It first reiterates its well-established case-law according to which the expulsion of an asylum seeker by a Contracting State may give rise to an issue under Article 3 where ‘substantial grounds have been shown for believing’ that the person concerned faces a ‘real risk’ of being subjected to torture or inhuman or degrading treatment or punishment in the receiving country […]. It is also clear from the mss judgment that the presumption that a State participating in the ‘Dublin’ system will respect the fundamental rights laid down by the Convention is not irrebuttable. For its part, the Court of Justice of the European Union has ruled that the presumption that a Dublin State complies with its obligations under Article 4 of the Charter of Fundamental Rights of the European Union is rebutted in the event of ‘systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the 95 96

Tarakhel v Switzerland (n 68) paras 3, 53 and 57. Ibid paras 53, 57, 100, 103 and 106; separate opinion at 53, 54, 55 and 57.

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Charter, of asylum seekers transferred to the territory of that Member State’ […]. In the case of ‘Dublin’ returns, the presumption that a Contracting State which is also the ‘receiving’ country will comply with Article 3 of the Convention can therefore validly be rebutted where ‘substantial grounds have been shown for believing’ that the person whose return is being ordered faces a ‘real risk’ of being subjected to treatment contrary to that provision in the receiving country. The source of the risk does nothing to alter the level of protection guaranteed by the Convention or the Convention obligations of the State ordering the person’s removal. It does not exempt that State from carrying out a thorough and individualised examination of the situation of the person concerned and from suspending enforcement of the removal order should the risk of inhuman or degrading treatment be established. […]97 It is perfectly clear that the Grand Chamber is dissociating itself from the mechanical transfer of the cjeu criterion on ‘systemic deficiencies’ to the assessment of Dublin transfer cases under Article 3 echr. In addition to pointing to the distinction between the two courts (‘For its part, the cjeu has ruled’), the ECtHR here insists on its own approach to the examination under Article 3 as adopted in the mss judgment. In defining the threshold for rebuttal of the presumption of compliance with this provision, the Grand Chamber further restates the ECtHR’s well-established ‘real risk’ test, implicitly suggesting that this is in line with the cjeu ruling (‘can therefore validly be rebutted’). To be sure that ‘systemic flaws’ are not a precondition in this regard, the Grand Chamber expressly discards the relevance of the source of such risk which cannot alter the level of protection and does not exempt the Member State contemplating a Dublin transfer of an asylum seeker from carrying out a ‘thorough and individualised examination of the situation of the person concerned’. Before continuing its assessment of the case before it, the focus of this examination is hereby further clarified by the Grand Chamber in a manner restating the well-established test in extraterritorial Article 3 cases. At the same time, it is here indicated that any potential systemic deficiencies in the Member State of prospective transfer may obviously be considered as relevant evidence in the assessment of the risk to which the asylum seeker will be exposed upon transfer. In ascertaining whether substantial grounds have been 97

Ibid paras 101–104 (emphasis added). Interestingly, the ECtHR continued with the following reference: ‘The Court also notes that this approach was followed by the United Kingdom Supreme Court in its judgment of 19 February 2014’. As mentioned in note 92, the ECtHR quotes a considerable passage of this judgment, ibid para 52.

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shown for believing that the applicants would be at risk of treatment contrary to Article 3 if they were returned to Italy, the Court must take into account ‘the overall situation with regard to the reception arrangements for asylum seekers in Italy and the applicants’ specific situation’.98 Rather than focusing on the existence or not of a situation that may be subsumed under the vague and fluent term ‘systemic deficiencies’, the ECtHR therefore examines the applicants’ situation against the background of the general information available on the Italian reception system. As it would fall beyond the limits of this chapter to carry out a detailed analysis of the Court’s specific findings, only a few characteristic elements should be briefly mentioned. Even if the methods of calculating the number of asylum seekers without accommodation are disputed, the Court notes the ‘glaring discrepancy’ between the number of asylum applications made in Italy in 2013 and the number of places available in reception facilities within the sprar network, and that neither the Swiss nor the Italian Government had claimed that the combined capacity of the sprar and the cara systems would be capable of absorbing the greater part, still less the entire demand for accommodation.99 As regards the conditions in the available facilities, the situation in Italy can ‘in no way be compared’ to the situation in Greece at the time of the mss judgment, and the structure and overall situation of the reception system in Italy cannot therefore in themselves be a bar to all removals of asylum seekers to that Member State. The information nevertheless raises ‘serious doubts’ as to the current capacities of the Italian system, so that the possibility that a significant number of asylum seekers may be left without accommodation or accommodated in overcrowded facilities without privacy or even in ‘insalubrious or violent conditions’ cannot be dismissed as unfounded.100 4.2 Principles, Problems and Perspectives after Tarakhel In the context of examining the applicants’ individual situation in the Tarakhel case in the light of Article 3 echr, the Grand Chamber reiterates that asylum seekers as a particularly underprivileged and vulnerable population group require special protection under that provision. This requirement is held to be particularly important when the persons are children, in view of their ‘specific needs’ and ‘extreme vulnerability’ which, in the Court’s view, is the decisive factor and takes precedence over considerations relating to the status of illegal immigrant. Reception conditions for children seeking asylum must therefore

98 Ibid para 105. See also Costello, ‘Courting Access to Asylum in Europe’ (n 23) 331–32. 99 Ibid para 110. 100 Ibid paras 114–15.

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be adapted to their age in order not to attain the level of severity falling within the scope of Article 3.101 These principled considerations apparently determined the outcome of the Tarakhel case insofar as the Grand Chamber concludes that, in view of the possibility that a significant number of asylum seekers transferred to Italy may be left without accommodation or accommodated in overcrowded or even insalubrious or violent conditions, given the current situation in the reception system, it is incumbent on the Swiss authorities to ‘obtain assurances’ from their Italian counterparts that on arrival in Italy the applicants will be ‘received in facilities and in conditions adapted to the age of the children’ and that the family will be kept together.102 This has to be seen in light of the Italian Government’s rather general statements about treating families with children as a particularly vulnerable category in the reception system. In the absence of ‘detailed and reliable information concerning the specific facility, the physical reception conditions and the preservation of the family unit’, the Court considers that the Swiss authorities do not possess sufficient assurances that the applicants would be taken charge of in a manner adapted to the age of the children in case of transfer to Italy.103 Without such assurances the Dublin transfer would be a violation of Article 3 echr. In situations where transfer under the Dublin Regulation is contemplated to a Member State with insufficient quantity or quality in its reception system for asylum seekers, to an extent similar to that described for Italy in the Tarakhel judgment, the Grand Chamber thus leaves Member States the option of obtaining such assurances from the responsible Member State. Correspondingly, the asylum seeker will be entitled to have individual guarantees providing ‘detailed and reliable information’.104 By referring to this ‘assurances’ terminology with little detail on the contents of the requisite guarantees, with no indication of the criteria for the reception conditions to be considered adequate to the family and their children, without specification of the level of detail and reliability of the information to be provided, and without indicating the possibility for the individual asylum seeker to enforce the guarantees received, the ECtHR may seem to leave rather crucial issues unsettled. In that sense the conclusion of the Tarakhel judgment actually raises new questions, not entirely unrelated to those already known in connection with ‘diplomatic assurances’ for other 101 Ibid paras 118–19, cf para 99 with reference to the un Convention on the Rights of the Child. 102 Ibid para 120. 103 Ibid para 121 in fine. 104 Ibid paras 121–22.

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deportation purposes in the context of extraterritorial application of the echr.105 These questions are not going to be pursued here, and time will show whether they may result in yet another Tarakhel case or other future applications being brought before the ECtHR in order to solve one or more of the issues here mentioned.106 Disputes concerning the Dublin Regulation are likely to continue, not only in terms of political controversies over the overall distributive fairness of the existing system towards Member States as well as asylum seekers, but also as disputes at the legal and judicial level due to the inherent problem of enforcing the distribution of asylum seekers as long as full harmonisation and fundamental rights compliance of reception conditions – and, indeed, of the standards on asylum procedures, definitions of persons in need of international protection, and the standards of treatment for those granted protection – have not yet been secured in the ceas. One lesson to be learned from the legal challenges and judicial reviews of Dublin transfers to Member States not in compliance with fundamental rights and ceas standards on reception conditions, as described and analysed in this chapter, is the central role of the existence and not least the quality of interjudicial dialogue, both between European and domestic courts and between the two European courts involved in the protection of human rights and eu fundamental rights, respectively.107 Another problem that remains, possibly even to an increased extent, is the risk of implicitly marginalising the un Refugee Convention as the primary international instrument setting standards for refugee protection, since these Convention standards are not being taken explicitly into consideration as long as relocation of asylum seekers within the ceas is being challenged and examined before courts having the interpretation and application of eu standards and fundamental rights and the human rights enshrined in the echr as their exclusive mandate. 105 Cf G. Noll, ’Diplomatic Assurances and the Silence of Human Rights Law’ (2006) 7 Melbourne Journal of International Law 104; M. Giuffré, ‘An Appraisal of Diplomatic Assurances One Year after Othman (Abu Qatada) v United Kingdom (2012)’ (2013) 2 ihrlr 266. 106 For more recent cases concerning Dublin transfer to Italy, clarifying the personal scope of application of the criteria laid down in the Tarakhel judgment, see ame v the Netherlands Appl no 51428/10 (ECtHR, 5 February 2015) and AS v Switzerland Appl no 39350/13 (ECtHR, 30 June 2015). 107 See H. Lambert, ‘Transnational Judicial Dialogue, Harmonization and the Common European Asylum System’ (2009) 58 iclq 519; G.S. Goodwin-Gill and H. Lambert (eds), The Limits of Transnational Law. Refugee Law, Policy Harmonization and Judicial Dialogue in the European Union (Cambridge University Press 2010) 1–16; L.H. Storgaard,’ eu Law Autonomy versus European Fundamental Rights Protection - On Opinion 2/13 on eu Accession to the ECHR’ (2015) 15 HRLR 1-37.

chapter 12

Vulnerable Persons as a New Sub-Group of Asylum Seekers? Lyra Jakuleviciene* 1 Introduction Back in 2010, the Stockholm Programme of the European Union (eu) called for better protection of vulnerable persons and groups be they citizens or noncitizens, and has set it as a central priority of eu policies by the European Council.1 Immigration and asylum policies are an integral part of this priority.2 More specifically in the asylum field, second generation asylum instruments seem to take a more substantive account of the vulnerability of asylum seekers. Also, the concept of vulnerable groups is gaining momentum in the case law of the European Court of Human Rights (ECtHR).3 This raises a question – is a new category of asylum seekers emerging? Not long ago the eu Directive on Reception Conditions of 20034 (Reception Conditions Directive or Reception Directive) was the only first generation eu asylum legal instrument that devoted substantive attention to the situation of vulnerable asylum seekers, establishing that a special treatment must be given to asylum seekers identified as vulnerable persons with special needs5 (emphasis added). There were no provision in the Reception Directive defining the notions of vulnerable asylum seekers and asylum seekers with special needs. Nor did the directive contain any provision compelling the Member States to

* Professor, Faculty of Law, Mykolas Romeris University, Lithuania. 1 European Council, The Stockholm Programme – An Open and Secure Europe Serving and Protecting the Citizens, oj C 115/1, 4 May 2010, para 1.1, 4 and paras 2.3.2 and 2.3.3, 9 and 10. 2 Ibid paras 2.3.2 and 2.3.3, 9 and 10, paras 5.1, 26 and 6.1.7, 31. 3 L. Peroni, A. Timmer, ‘Vulnerable Groups: The Promise of an Emerging Concept in European Human Rights Convention Law’ (2013) 11(4) ijcl 1056. 4 Council Directive No. 2003/9/EC of 27 January 2003 laying down the minimum standards for the reception of asylum seekers, oj L31/18, 6 February 2003. 5 L. De Bauche, L. Tsourdi, ‘Presentation and Analysis of the Main European Union Provisions to be Taken Into Account and the Identification of Vulnerable Asylum Seekers Reception Conditions Directive and Dublin Regulation’ (February 2013) Protect-Able Project, 9 (on file with the author).

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004308664_013

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implement any procedure for the identification of vulnerable asylums seekers – or asylums seekers with special needs.6 eu Asylum Procedures Directive of 20057 (Asylum Procedures Directive) gave little interest to a potential vulnerability of asylum seekers. Dublin ii Regulation8 also did not contain explicit provisions that protected vulnerable persons except indirect sovereignty9 and humanitarian clauses,10 which were at the discretion of the Member States. This Article focuses on the new provisions of the Recast Reception Con­ ditions Directive11 (Recast Reception Directive) in line with related provisions in Dublin iii Regulation12 (driii), the Recast Asylum Procedures’ Directive13 (Recast Procedures Directive) and the Recast Qualification Directive14 in order to clarify two points:

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There was no consistency in the Reception Conditions Directive, as throughout the text it referred either to applicant’s ‘vulnerability’ or to ‘asylum seeker [who] has special needs’. Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures for granting and withdrawing refugee status, oj L326/13, 13 December 2005. 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, oj L 50, 25 February 2003. Article 3(2): ‘By way of derogation from paragraph 1, each Member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in this Regulation’. Dublin Regulation ii Article 15(1): ‘Any Member State, even where it is not responsible under the criteria set out in this Regulation, may bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations’. Directive No. 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), oj L180/96, 29 June 2013. 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), oj L 180/31, 29 June 2013. Directive No. 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), oj L180/60, 29 June 2013. Directive No. 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

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(1) The definition of vulnerable persons and its relationship to special needs and special guarantees. It will be explored whether we found a way out of the vicious circle of special needs/vulnerable persons and what is now the key notion in comparison with general vulnerability concept in human rights law. (2) The obligations for Member States to identify vulnerable applicants and how identification mechanisms could look like in line with these obligations. It will be analysed if it shall be a new stage of procedure and whether there is any link between recognition under reception conditions and carrying out asylum procedures. The issue of vulnerability in broader context than asylum has been gaining the interest of several authors recently, like Alexandra Timmer, Lourdes Peroni, Turner and others. Vulnerability in asylum context has been an academic interest of Laurence De Bauche, Lilian Tsourdi and other academic authors. However, considering the recent adoption of second generation asylum instruments and novelty of the issue, this Chapter is expected to contribute to a ­better understanding of Member States’ obligations flowing from the new generation of asylum directives and regulations. As a number of Member States are yet defining and establishing the mechanisms for identification of vulnerable asylum applicants, this Chapter may be useful for their relevant authorities. Last, but not least, this Chapter may be of relevance as new instruments do not provide a final answer to many aspects of the situation of the vulnerables and there are a number of points on which discussions are likely to endure for a number of years. This Chapter is one of these efforts. 2

Defining Vulnerability in European Union Asylum Legislation

Firstly, let us reflect on the notion of vulnerable persons. More broadly, vulnerability’s meaning is imprecise and contested, while the concept itself is fraught with paradox.15 The term itself stems from Latin vulnus, which means wound.16 Thus harm and suffering feature centrally in most accounts of vulnerability. Recently, however, theorists have moved towards an understanding

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eligible for subsidiary protection, and for the content of the protection granted (recast), oj L 337/9, 20 December 2011. Peroni and Timmer (n 3) 1058. B. S. Turner, ‘Vulnerability and Human Rights’ (28, 2006), cited from: Peroni and Timmer (n 3) 1058.

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of vulnerability that expands beyond suffering, to encompass positive aspects.17 More specifically, asylum seekers have been featuring as a vulnerable group in the case law of the ECtHR since recently, along with Roma, people with mental disabilities, and people living with hiv. Most prominently, the asylum seekers have been recognized as vulnerable as a group by the Court in a case of mss v Belgium and Greece (2011). In this case the Afghan asylum seeker, returned under the Dublin ii Regulation from Belgium to Greece was recognized as vulnerable because of ‘everything he had been through during his migration and the traumatic experiences he was likely to have endured previously’.18 Although vulnerability as such is not yet a key factor influencing the outcome of the case in the considerations by the ECtHR,19 in this particular case, the fact that the applicant was vulnerable, lead the Court to recognize the violation of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (echr). The vulnerability of the applicant as an asylum seeker played a role in the Court’s decision of whether his conditions of detention reached the ‘minimum level of severity’ to fall within the scope of Article 3 echr. Group vulnerability in this case acted as a magnifying glass: the ill-treatment caused to the applicant looked bigger through the vulnerability lens.20 The Court held that ‘the applicant’s distress was accentuated by the vulnerability inherent in his situation as an asylum seeker’ and attached considerable importance to the ‘applicant’s status as an asylum seeker and, as such, a member of a particularly unprivileged and vulnerable population group in need of special protection’.21 On the other hand, we also see other factors beyond the traumatic background of the asylum seekers based on their migration status, which are important for the ECtHR in treating asylum seekers as vulnerable. This is their material situation and total dependence on the State. Similarly to the arguments of the non-asylum case in Budina v Russia, in which the Court considered the responsibility of the State to be engaged under Article 3 where the applicant was wholly dependent on the state support and found herself faced with official indifference in a situation of serious deprivation or want incompatible with human dignity,22 the Court relied on this material criterion also in mss 17 18 19

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Peroni and Timmer (n 3) 1058–1059. mss v Belgium and Greece Appl no 30696/09 (EctHR, 21 January 2011) para 232. L. Jakuleviciene, ‘Protection of Vulnerable Persons Under echr and eu law’, Presentation delivered at the Conference ‘Human Rights in Modern Society’ on 16 May 2014 at the Parliament of the Republic of Lithuania (on file with the author). Peroni and Timmer (n 3) 1079. mss v Belgium and Greece (n 18) paras 233, 251. Antonina Dmitriyevna Budina v Russia Appl no 45603/05 (EctHR, 18 June 2009).

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case to refer to asylum seeker as vulnerable. Thus the vulnerability of asylum seekers is a reason why the neglect of their physical welfare amounts to a breach of Article 3.23 But in this case we also see dissenting opinions, because the Court usually referred to vulnerability of applicants in connection with either their long term discrimination (e.g. Roma, persons with mental disability) and/or their social classification, thus not all judges agreed that the applicant is vulnerable in the specific meaning of vulnerability practiced by the Court.24 But, as Clayton claims, the vulnerability of the applicant is attributed to the State, because even the most wealthy and resourceful asylum seeker cannot grant their own refugee status nor give themselves access in law to the host society; they are dependent on State action for this.25 Thus it seems the Court accepts that all asylum seekers as such are vulnerable. As we will see, the eu law has a slightly different approach to the inherent vulnerability of the asylum applicant. At European Union level, second generation asylum instruments use different terminology to define vulnerable individuals. They are referred as to vulnerable persons, persons with special needs (Recast Reception Directive, driii, Recast Qualification Directive) or in need of special procedural guarantees (Recast Procedures Directive). Firstly, there is no definition of a vulnerable person as such in any of the eu asylum instruments. Instead, the Recast Reception Directive provides for a list of vulnerable persons, which is not an exhaustive one. Thus vulnerable persons are not defined in the abstract, instead an open list of categories of persons considered de jure as vulnerable is mentioned.26 This means that vulnerability is linked to personal situation of the person, thus could be recognized even if the person does not fall in the list. Considering that the list of vulnerable individuals in the Recast Reception Directive is not exhaustive, it 23 24

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G. Clayton, Asylum Seekers in Europe: mss v Belgium and Greece (2011) 11(4) hrlr 769–770. For instance, Partly concurring and partly dissenting opinion of Judge Sajó, where he ­disagrees with the Court on vulnerability of the applicant: ‘To my mind, although many asylum seekers are vulnerable persons, they cannot be unconditionally considered as a particularly vulnerable group, in the sense in which the jurisprudence of the Court uses the term (as in the case of persons with mental disabilities, for example), where all members of the group, due to their adverse social categorisation, deserve special protection. In the context of the Dublin system, particularly “vulnerable person or people” refers to ­specific categories within refugees, namely to victims of torture and unaccompanied ­children only, and their treatment is unrelated to their classification’, mss v Belgium and Greece (n 18). Clayton (n 23) 770. L. De Bauche, Vulnerability in European Law on Asylum: A Conceptualization under Construction. Study on Reception Conditions for Asylum Seekers (Bruylant 2012) 103.

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is necessary to assess vulnerability in each and every case, because it is not possible to envisage all new forms of vulnerability. Article 21 of the Recast Reception Directive includes the following individuals as vulnerable: 1. Minors; 2. unaccompanied minors; 3. disabled people; 4. elderly people; 5. pregnant women; 6. single parents with minor children; 7. victims of human trafficking; 8. persons with serious illnesses; 9. persons with mental disorders; 10. persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, such as victims of female genital mutilation. Thus, in principle, the Recast Reception Directive does not alter the notion of vulnerable persons (as defined in Article 17 Reception Directive), but adds three new categories:27 a) victims of trafficking; b) persons with serious illnesses; c) persons with mental disorders. Also, it mentions some examples of victims of torture, rape or other violence, like ‘victims of female genital mutilation’, and this separate mention may constitute a protective warning in favour of women. The vulnerability in the directive is linked to various factors, like: 1. 2. 3.

inherent or acquired characteristics (e.g., age (minors, elderly), disability: persons with physical and mental disability); experiences suffered (victims of torture, rape or other serious forms of violence); specific situation of the person (e.g., pregnant women, victims of trafficking, unaccompagnied minors, single parents with minor children, persons with serious illnesses, mental disorders).

Secondly, the approach of the second generation asylum instruments and ECtHR towards the concept of vulnerability is slightly different. While the ECtHR ­considers all asylum seekers vulnerable due to their traumatic migratory experiences and dependency on the State, and thus in need of special protection, the eu approach is that not every vulnerable asylum seeker requires special 27

De Bauche and Tsourdi (n 5) 26.

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treatment and guarantees. The new directives distinguish between vulnerability and special needs or special procedural guarantees and it seems these concepts are not treated as the same. Thus to determine the beneficiaries of protective provisions the responsible authorities should therefore apply two notions, each corresponding to a distinct definition.28 Both the Recast Reception Directive and Recast Procedures Directive talk about the special needs and special procedural guarantees of persons who are vulnerable. This is firstly a result of a new provision introduced in the Recast Reception Directive – ‘Applicant with special reception needs’ (Article 2(k)) with reference to the notion of vulnerable person under Article 21 (emphasis added). The directive links the ‘special reception needs’ (Article 2(k)) to ‘special guarantees to enable the person to benefit from the rights and comply with the obligations provided for in [the] directive’. Thus new Recast Reception Directive provision clearly establishes the requirement of a necessary link between the notion of ‘special reception needs’ and the notion of ‘vulnerable persons’ in the sense of Article 21. Also, the Recast Procedures Directive links vulnerability with ‘special procedural guarantees’ as applicant’s abilities to benefit from rights and comply with obligations may be limited due to individual circumstances.29 This means that due to personal situation the person’s abilities to participate in the asylum procedure are restricted and these needs have to be satisfied so that the person would be able to use the rights and implement obligations. For example, the possibilities of a single 30-year old man, who has never experienced torture, to present his case in front of uniformed border guards are very different from the possibilities to do the same for a young girl from Africa who has been raped by the military. Or for example, the consequences of torture, rape or other forms of serious violence as part of the asylum procedure is crucial when you consider how much they are likely to interfere with the ability of the person to tell a coherent, comprehensive and consistent story, as we expect from them in the asylum process. The same could be said about those suffering from mental illness or post traumatic disorders.30 Thus vulnerability could be understood as a special situation of the person, which limits the ability to exercise rights and comply with obligations. De Bauche states the definition by reference to a list of categories of persons mentioned as examples, but person may be identified as a vulnerable person even if it does not belong to a category.31 While special needs could be understood as needs, which need to be satisfied for the person 28 29 30 31

De Bauche (n 26) 104. Recast Asylum Procedures’ Directive (n 13) para 29 of the Preamble, Article 2(d). De Bauche (n 26) 102. Ibid 105.

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to be able to participate in the asylum procedure.32 In the opinion of De Bauche, the notion of ‘applicant in need of special procedural guarantees’ is based on a restricted definition in the Recast Procedures Directive referring to an exhaustive list of conditions or causes that ‘characterise’ the person.33 There is no definition of special reception needs. But clearly belonging to one of the categories of vulnerable persons listed in Article 21 is not sufficient to be provided with a special support under the directive. Indeed, the individual shall have special needs. Thus, while it is clear (from the Recast Reception Directive under Article 2(k), 21 and 22)) that any person with special reception needs is as such a vulnerable person indeed not every vulnerable person has special needs or is in need of special guarantees. While the Recast Procedures Directive, even though it does not refer to vulnerability as such in recital 29 of the preamble and Article 2(d), it mentions needs for special procedural guarantees only to persons whose abilities are limited due to certain individual factors. As a result, persons with special reception needs or needs for procedural guarantees are a sub-category of vulnerable persons but identification of vulnerability remains implicit. With regard to the link between vulnerability and special needs assessment, De Bauche claims that though the objectives of these provisions are expressed differently, its purpose is to grant special procedural guarantees to specific asylum seekers.34 Straimer, however, argues that every vulnerable person has automatically special needs. She quotes a United Nations High Commissioner for Refugees (unhcr) representative, who explains that the list of vulnerable groups gives a predetermined concept, and if the person falls under such a list, then it is automatically assumed he/she has special needs.35 At the same time she indicates that at least within unhcr the tendency was to move away from general assumptions about vulnerability and special needs and instead assess whether an individual had specific needs in a given context, depending on his or her personal circumstances.36 The directives seem to reflect that tendency as well. In the context of Dublin iii Regulation procedures there are no specific provisions on protection of vulnerable persons with special needs,37 with the 32

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L. Jakulevičienė and V. Siniovas, Methodology for Determining Vulnerable Asylum Seekers and Working With Them (Pažeidžiamų prieglobsčio prašytojų nustatymo ir darbo su jais metodika) (Vilnius 2014) 10. De Bauche (n 26) 104–105. Ibid 105. C. Straimer, ‘Vulnerable or Invisible? Asylum Seekers with Disabilities in Europe’ (2010) unhcr New Issues in Refugee Research, Research Paper No. 194. Ibid 8. Article 6, first indent mentions only of the best interest of minors in the view to determine the Member State responsible for the status determination.

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exception that it creates significant safeguards in the framework of Dublin transfers for one particular group of vulnerable persons: unaccompanied minors.38 At the same time, considering that the Recast Reception Directive applies during Dublin procedures,39 as the Court of Justice of the eu (cjeu) pronounced in the Gisti40 case, all the provisions for vulnerability included therein are applicable. The list of vulnerable persons mentioned in Article 32(1) of the Dublin iii Regulation41 is not identical to the one of Article 21 Recast Reception Directive. However, as the list is an open-ended one, namely the wording ‘in particular’ is used, further categories of vulnerable persons with special needs could be included.42 In diiir context, the most important thing for the vulnerable individual is whether or not detected vulnerability will lead to a decision not to proceed with the transfer. Currently, it seems not to be the case, i.e. there is no obligation for Member States to refrain from transferring persons who are unfit to travel. The Regulation only provides for an obligation to exchange information on special needs of the person before a transfer is carried out and ensure that those special needs are adequately addressed (emphasis added).43 Thus the Recast Regulation fails to fully take into account the situation of vulnerable individuals. Even vulnerable persons whose special needs might involve the necessity of ‘immediate health care’ upon being transferred are still considered ‘fit to travel’.44 Provisions, which might be relevant, although they do not specifically refer to vulnerable persons as a category, are  discretionary. Member States may refrain from transferring an asylum seeker to the responsible Member States and instead take the responsibility to  examine the application themselves either under the sovereignty clause of  the  Dublin iii,45 therein, considerations on vulnerability might be taken into account, even if the article makes no direct reference to vulnerable asylum seekers with special needs, or on humanitarian grounds (Article 17(2)).46 These clauses, which existed also in Dublin ii Regulation have been used to 38 39 40

41 42 43 44 45 46

De Bauche and Tsourdi (n 5) 45. Recital 11, Preamble, Dublin iii Regulation. Case C-179/11, Cimade and Groupe d’information et de soutien des immigrés (gisti) v Ministre de l’Intérieur, de l’Outre-mer, des Collectivités territoriales et de l’Immigration [2012] ecli:eu:C:2012:594, paras 37 and 44. Disabled persons, elderly people, pregnant women, minors and persons who have been subject to torture, rape or other serious forms of psychological, physical and sexual violence. De Bauche and Tsourdi (n 5) 46. Article 32(1) of the Dublin iii Regulation. De Bauche and Tsourdi (n 5) 46. Article 17(1) of the Dublin iii Regulation. De Bauche and Tsourdi (n 5) 42.

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enunciate some principles by the cjeu in relation to vulnerable persons and their relatives in ns and me Joined Cases47 and K Judgment48 (codified under Article 3(2) and 16 (1) of the Dublin iii Regulation). Also, several provisions, although not specifically targeted at vulnerable asylum seekers, could have a negative bearing on their situation. For instance, Article 16(2) of the Dublin iii Regulation is the only part where the Regulation takes into account the inability of the asylum seeker to travel. If that inability prevents them from travelling for a significant amount of time, then the asylum seeker loses the right to be reunited with their family members and their asylum application will be examined by the Member State where they find themselves. At the same time, the Regulation makes it clear that no obligation exists to bring the family members together in the Member State where the asylum applicant has to stay because of his/her inability to travel. 3

Identification of Vulnerable Persons: New Mechanisms or Just Minimum Requirements?

Identification of vulnerability as such means that it is examined whether or not the person belongs to a particular category of persons considered vulnerable and if such person has special needs or is in need of special procedural guarantees. In this regard, certain situations of vulnerability are obvious or easily detectable (e.g. young minor), others are less (e.g. traumatic experiences as a result of torture). Also it is difficult sometimes for a victim to talk about it, which makes the detection of vulnerability even more difficult. In these situations, the lack of procedure means that many vulnerable asylum seekers are  not identified as such, so they will be deprived of adequate reception ­conditions according to their possible special needs.49 Thus the European Commission underlines that ‘identification of vulnerable asylum seekers is a core element without which the provisions of the Directive aimed at special treatment of these persons will lose any meaning’.50 47

48 49 50

Joined Cases C-411/10 and C-493/10, ns v Secretary of State for the Home Department and me and Others v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform [2011] ecr I-13905. Case C-245/11 K v Bundesasylamt [2012] ecli:eu:C:2012:685. De Bauche and Tsourdi (n 5) 15. European Commission, Report from the Commission to the Council and to the European Parliament on the application of Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, COM/2007/0745 final, 26 November 2007, para 3.5.1.

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Considering that vulnerability of applicants leads to special needs in the reception conditions and asylum procedures, it is essential to identify such applicants and afford them with special guarantees in the asylum procedures. As the Recast Reception Directive relates vulnerability to personal circumstances of the person and the Recast Procedures Directive – to individual circumstances, the identification of these circumstances is key in order to afford special treatment to these persons under eu asylum law. Furthermore, vulnerable asylum-seekers are provided with an adequate support only when their special needs are established. Response to these special needs shall be a system for identification and meeting of special needs. The first question that is usually examined when identification procedures are elaborated, is whether to implement a system based on standardised ­criteria – grouping or categorising special needs – or design a system geared towards a purely individual identification. In practice of organizations, like unhcr, both tools are applicable, sometimes in combination. For instance, unhcr has the lists of special needs code, which is very detailed and includes over 70 categories and sub-categories of special needs, which makes identification almost individualised even by using this standardised tool.51 The Reception Conditions Directive of 2003 (Article 17) did not explicitly required, from a legal point of view, a specific procedure to be put in place in order to identify those asylum seekers with special needs.52 However, as the European Commission notes, despite the fact that it is not literally an obligation, there might be serious doubts as to how and whether persons with special needs are actually identified in Member States with no such tool.53 Even though the setting up of a certain mechanism for identification is logically required by the vulnerability provisions in the directives, the absence of express provision creates a legal uncertainty detrimental to vulnerable asylum seekers.54 Also, neither the Recast Reception Directive, nor the Recast Proce­ dures Directive provide for the outline of the identification mechanism. It is not clear if it should be a new stage of procedure or only very minimum requirements to be met for such identification procedures? And whether there is any link between recognition under reception conditions and carrying out 51 52

53 54

B. Tax, ‘Identification of Asylum Seekers with Special Needs: Examples of unhcr Practice, Tools and Experience from its Operations Worldwide’ in De Bauche (n 26) 307. Odysseus Network, ‘Comparative Overview of the Implementation of the Directive 2003/9 of 27 January 2003 laying down minimum standards for the reception of asylum seekers in the eu Member States’ (October 2006) Odysseus Network Report 76. European Commission (n 50) para 3.5.1. De Bauche (n 26) 106.

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asylum procedures? What is clear, that in the process of adopting the Recast Reception Directive the Member States wanted to avoid calling it mechanism, thus the initial proposal of the Commission, which suggested an obligation to establish ‘identification procedures’ (2008), was later changed to ‘assessment’. The requirement to establish special needs’ identification mechanisms was also one of the main questions in the discussions on the Recast Reception Directive and the Recast Procedures Directive in the Council and the Parlia­ ment. Thus let’s explore what obligations to identify vulnerable applicants do the new directives establish for Member States and how identification mechanisms could look like on the basis of second generation asylum instruments. First of all, the Recast Reception Directive does not establish an explicit obligation to set up an identification mechanism, but it sets a clear requirement to establish a ‘vulnerability assessment’ in Article 22, i.e. to assess whether an applicant is a vulnerable person (implicit obligation) and if so, has special reception needs (explicit obligation) (emphasis added). This obligation did not explicitly exist in Reception Conditions Directive of 2003, which only linked the application of guarantees with individual evaluation of personal situation.55 The Recast Procedures Directive also notes a similar obligation in Article 24 – to assess whether the applicant is an applicant in need of special procedural guarantees, as well as in the preamble56 – ‘endeavour to identify applicants in need of special procedural guarantees’ and takes up the same basic principles as those contained in Article 22 of the Recast Reception Directive. Considering that Article 24(2) of the Recast Procedures Directive mentions a possibility of integrating assessment of vulnerability with that provided in Article 22 of the Recast Reception Directive, in practice it may mean that the person identified as vulnerable under the Recast Reception Directive will have to be granted ­special procedural guarantees under the Recast Procedures Directive. If separate mecha­ nisms would be applicable, such proliferation of procedures to identify could jeopardise the quality, efficiency and sustainability of the Common European Asylum System.57 At the same time, it should be emphasised that the needs of vulnerable persons in the context of both directives may differ. For instance, while an unaccompanied child asylum seeker will require special reception conditions and also special procedural guarantees to assist him/her to participate in the asylum procedure, a single parent with minor children may only need special arrangements for children in order to take part in asylum interview. Thus, as De Bauche suggests that if these two mechanisms are joined 55 56 57

Reception Conditions Directive (n 11) Article 17(2). Recast Asylum Procedures’ Directive (n 13) para 29. De Bauche (n 26) 108.

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together, which is reasonable, then still, when implementing it, clear distinction should be drawn between the two requirements and lead to two different assessments.58 Secondly, neither the Recast Reception Directive nor the Recast Procedures Directive specify how the system of identification (assessment of special needs/ guarantees) shall look like, but from the link between the special needs and the vulnerability assessment, it could be inferred that such a mechanism is twofold and comprises: a) identification of vulnerability and, if so, then b) existence of special reception needs or needs of special procedural guarantees. At the same time, the directives provide for some guidelines and requirements for such identification mechanisms: a) identification shall start at rea­sonable period of time, but also monitoring shall be ensured; b) be not necessarily as administrative procedure; c) no influence on the assessment of asylum application. Let’s examine each of them. On one hand the Recast Reception Directive requires the identification to start within reasonable period of time from submission of asylum application,59 but also stresses that it should be carried out at any time if needs occur at a later stage of the procedure.60 It does not seem to impose upon the Member States to implement follow-up assessments61 to make sure the vulnerability and needs are identified anyhow and do not slip the attention of authorities. Because where such a need becomes apparent at a later stage of the procedure, it shall also be addressed without restarting the procedure. Thus the systems for identification of special needs shall allow for the identification at different times. The need for identification to be a continuous process is also confirmed by the fact that special needs might be preexisting to arrival in asylum country, but also those that may arise as new ones in exile. Ideally, a system should include elements that can pick up early signs of special needs in order to allow for early intervention, but also capture those that may emerge. For example, traffickers may be approaching a single woman

58 59 60

61

Ibid 107. Article 22(1), Article 24(1) and (4) of the Recast Reception Conditions Directive, para 29, preamble of the Recast Asylum Procedures’ Directive. The Recast Reception Conditions Directive states that ‘Member States shall ensure that these special reception needs are also addressed, in accordance with the provisions of this Directive, if they become apparent at a later stage in the asylum procedure’ (emphasis added), Article 22(1) indent 2. Only very few Member States conduct follow-up assessments, as reported by the European Migration Network in its study ‘The Organisation of Reception Facilities for Asylum Seekers in Different Member States’ (2014) European Migration Network Study – Synthesis Report 12.

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in the reception centre, or a single male applicant is seriously discriminated against in reception centre due to his sexual orientation, etc.62 The main question is of course what is reasonable period of time to start identification? No hints are given by the Reception Directive, while recital 29 of the Procedures Directive provides an indication by underlining that ‘Member States shall endeavour to identify applicants in need of special procedural guarantees before a first instance decision is taken’ (emphasis added). However, the period between the first contact and first instance decision may be quite long, thus the guideline should be reasonability – if you start identifying the unaccompanied minor only when he or she arrives to the reception centre having stayed for several days at the border in detention, then application of some procedural guarantees will be jeopardised. Thus, as suggested in the fourth section of this Article, identification shall start from the first contact with official, even though not every aspect may be assessed at once, in particular, in the areas where specialists are lacking (e.g., border control posts, transit zones and alike). With regard to follow-up assessments, in practice, few Member States assess vulnerability regularly. For example, Belgium conducts regular vulnerability assessments and monitors changes to applicants’ needs over time. This is done as follows: the vulnerability assessment is required to take place within 30 days following allocation and should be repeated at several intervals during the applicant’s stay at the reception facility.63 Furthermore, the Reception Directive allows the identification mechanism to be outside the administrative procedure, if Member States wish so. The Procedures Directive also does not mention separate identification procedure, but links it to the special needs assessment under Recast Reception Directive or the one that is integrated into existing national procedures.64 Thus it does not establish a mandatory format of this procedure as leading to a separate decision on vulnerability (special needs), against which the Member States would have to provide an effective remedy. This reflects the lack of support by Member States to establish a separate identification procedure. However, there is no further indication in the directives as to whether it is part of decision making procedure. But because of the link between the assessment of vulnerability in both directives, it could be said that if the person is identified as vulnerable under Recast Reception Directive, asylum authorities shall provide special guarantees in the asylum procedure as mentioned above. 62 63 64

Tax (n 51) 307. European Migration Network Study (n 61) 12. Article 24(2) of the Recast Asylum Procedures Directive.

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Last, but not least, the Recast Reception Directive states that the assessment of vulnerability does not influence the assessment of the asylum application.65 What does it mean in practice? Clearly, one could agree, that the mere fact of being vulnerable does not guarantee the positive outcome for the applicant in the determination of protection status. The stipulation implies that in the context of the examination of the application for international protection in order to decide on the merits of this application, the determining authority is not obliged by the assessment resulting from the implementation of Article 22 of the Recast Reception Directive – among other things the identification of an asylum seeker as a vulnerable person with special reception needs is not in itself a sufficient ground for granting international protection.66 At the same time, this provision seems to run counter some other tendencies in the directives. Firstly, the Recast Procedures Directive mandates to carry out medical examination concerning signs of past persecution or serious harm when needed under Article 4 of the Recast Qualification Directive and encourages the Member States to create measures of documenting the signs of vulnerability, based on the Istanbul Protocol.67 Thus such documentation of signs of ­vulnerability may be very important evidence in qualifying the case, and there seems to be at least an indirect link between vulnerability and merits assessment, because according to Article 4(4) of the Recast Qualification Directive, the fact that the applicant has already been subject to persecution or serious harm, is a serious indication of the applicant’s well founded fear of persecution or serious harm. For example, the link between the assessment of vulnerability and qualification is clear if medicallegal reports are prepared by experts, which assess if the signs on the body or psychological state may be related to events, on which the asylum application is based.68 This reasoning is also confirmed by one of the drafters of these provisions.69 However, the problem lies somewhat deeper. If one looks at the narrow purpose of each asylum directive, it is clear that Reception Conditions shall deal with material and other reception conditions only and not interfere  into the substance of the claim, while Recast Qualification Directive shall  only deal with qualification and not the procedures (despite clearly 65 66 67 68 69

Article 22(4) of the Recast Reception Conditions Directive. De Bauche and Tsourdi (n 5) 32–33. Article 18(1) and recital 31 of the Preamble of the Recast Asylum Procedures Directive. Jakulevičienė and Siniovas (n 32) 41. Interview with Vladimiras Siniovas, who has participated in the European Commission’s drafting and negotiating work of the second generation asylum directives in the Council and the Parliament, 13 June 2014.

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­ rocedural Article 4). But if we think in terms of the Common European p Asylum System (ceas) or revert back to the primary eu law, then all the directives shall be interlinked and reasoning like above would be well positioned. But this needs some time, even for the cjeu to read the directives as part of the ceas under one common objective and for the Member States to apply them in this way. Secondly, vulnerability of the person and psychological problems is a very important factor in establishing the risk, which the person may experience if returned to the country of origin. E.g., what is not persecution for an adult, for a child may be.70 The fact that information obtained in the context of the asylum procedure, like the information on experiences of gender based violence or other traumatic experiences or issues relating to family separation, can usefully feed into assistance responses and vice versa, is also confirmed by the practice of organizations, like unhcr.71 4

Present and Future Mechanisms for Identification of Vulnerable Persons

Back in 2007, at least 9 eu Member States had not put any identification procedure in place based on the 2003 Reception Conditions Directive.72 To compare, the situation in 2014 is very different, as most Member States conduct vulnerability assessments, some having it based on legislation or performed just as a  standard practice. However, studies point out to the great differences that exist in terms of assessment criteria, methods, timing and follow-up measures on identification of vulnerable applicants, with only few (Member) States monitoring special needs over time.73 Also, in a broader context, majority of States have mechanisms on identification of vulnerable persons in forced return procedures and procedures for the identification of victims of trafficking in human beings in international protection, outlined in soft law, guidelines or practice.74 However, it is considered that the absence of a formal framework and of a person specifically responsible for the identification within the team is considered

70 71 72 73 74

Jakulevičienė and Siniovas (n 32) 64. Tax (n 26) 308. European Commission (n 50) para 3.5.1. European Migration Network Study (n 61) 2 and 4. European Migration Network, ‘Identification of Victims of Trafficking in Human Beings in International Protection and Forced Return Procedures’ (2014) European Migration Network Study – Synthesis Report 17.

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as shortcomings of the existing system.75 Identification takes place at different times and in different ways in the Member States. In some Member States (e.g., the Czech Republic, France, Lithuania and Spain) upon applicant’s arrival at reception facilities a general vulnerability assessment is carried out (e.g. medical screening).76 In some other Member States assessment of special needs takes place during the interview (Czech Republic, Estonia, Finland, Luxembourg and the Netherlands), in Finland also social workers are involved for this purpose, some countries carry out monitoring/repeated assessment (Belgium, Sweden, Lithuania). Even though the new directives do not establish a time limit for identification, Belgium, for instance, carries it out within 30 days. In some countries, there is no standard practice to carry out identification (Austria, France, Italy).77 Even if some identification practices exist, they may be restrictive or not inclusive. For example, in Lithuania, identification is carried out in the reception centres, thus applicants at the border or local migration offices, or residing outside the centres, are left out of the local system, it also covers only the assessment of special reception needs. What could be the suggestions for an identification mechanism that would meet the requirements and be in line with the logics of the new asylum directives? Member States have recently been developing various models of identification and the proposed model here is also part of these efforts. The suggested identification mechanism could include three stages of identification of vulnerability (special needs).78 Not always all three stages will be needed, but it is designed to capture all needs arising at any time of the asylum procedure. 1) Preliminary identification during the first interview upon submission of the a­ sylum claim. In this stage the official who is responsible for receiving asylum application (border guard, migration or police officer, etc.) collects initial data on vulnerability based on standardised form of vulnerability and special needs, as well 75 76 77 78

De Bauche (n 26) 152. European Migration Network Study (n 74) 20. Ibid 19–20. Proposals presented here are largely based on suggestions developed by the author of this Chapter and other external experts for the Lithuanian Government in establishing its own vulnerability and special needs identification system under the erf project ‘Improving Procedures on Granting Asylum in the Republic of Lithuania’, completed in 2014. Therefore, certain aspects were adjusted to the existing procedural actions on identification carried out in Lithuania at the moment of development of proposals, and may need adjustments depending on the national specificity of each Member State. See Jakulevičienė and Siniovas (n 32) 34–44.

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as ­symptoms that could be noted of the applicant. Not all symptoms of vulnerability are clearly visible (like disability, young age and alike), thus the first contact officers shall be properly trained to detect the symptoms. Based on this data the first contact official makes a conclusion on how the special needs shall be ensured. It is suggested that in case of minimal indications, the presumption of vulnerability shall be applied and this presumption may be rebutted later if indications of vulnerability are not confirmed. The application of this presumption is key, as it may be difficult to properly confirm vulnerability at the border where psychologists, social workers and other specialists are usually not available and the timeframe is very tight, while the damaging consequences for disregarding the vulnerability and special needs may be irreversible. For example, the applicant who is torture or rape victim may be silent on his/ her experiences if interviewed in a non-sensitive manner and this may result in credibility problems at a later stage of the procedure if facts emerge at a later interview. Preliminary identification form filled by the first contact official shall be submitted to the central asylum authority together with the file of the applicant, which would approve the suggested special measures and could include additional ones, if deem needed. At this stage, the decision is taken not as a separate one, but relevant marks are made on the special needs identification form as to whether, e.g., the claim could be examined in accelerated procedure, etc. Copies of the form shall be sent to reception centres and psychologist. Considering that vulnerability data is sensitive, appropriate arrangements shall be made under national law for personal data protection. With regard to implementation of assigned special measures, the timing of undertaking them may differ. Some may be undertaken immediately as soon as ­vulnerability is identified. For example, in many countries the contact with a young unaccompanied minor carries an obligation under general legislation to inform child protection institutions and assign a guardian. While other measures may be applicable at a later stage (e.g., exemption from accelerated ­procedure). This procedure would ensure the implementation of obligations established by the new directives to start assessment of vulnerability at early stage of the asylum procedure. There might be a few challenges in this initial procedure though – one of them being the division of competence between the national institutions. If one procedure of identification is applied for both special reception needs and procedural guarantees, not always the central asylum authority has the competence to approve all measures (e.g., asylum body may not necessarily be responsible for reception measures). In this case, close coordination between asylum and reception authorities (if different) shall take place and the form of special needs shall be circulated for approval of both bodies as per their specific competence.

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2) Identification of special needs at reception centre. It shall be noted that even though the applications of vulnerable applicants shall be prioritised in the asylum process,79 swift examination of their cases may not be always appropriate and usually it requires more time than for other applicants. In this context, it is suggested to continue the identification process after 7–10 days following arrival of the asylum seeker to the reception centre, to enable him/her to rest and make out in the new environment. The second stage of identification focuses on involvement of specialists. It includes: a) interview with a social worker (this social interview shall focus on personal situation, health situation, social and physical independence of the applicant; the applicant may be asked to fill in ‘Protect’ questionnaire80); b) medical examination (focused on verification of existence of health problems); c) interview with a psychologist (focused on psychodiagnostics in order to ensure prevention of secondary victimisation). Before these interviews asylum seekers shall be informed about the purpose, procedure and consequences of this mechanism. Based on these interviews, within 30 days from accommodation of asylum seeker in the reception centre the social worker and psychologist shall fill in the form of vulnerability and special needs and send it to the central asylum authority, which approves the status of the person as vulnerable and special treatment in the asylum procedure. When previously the form was filled in the first stage of identification, the measures assigned may be narrowed down, enlarged or kept the same by the central asylum authority. It is recommendable to repeat this second stage identification procedure after a period of 6 months to establish if vulnerability and special needs persist and, if the measures assigned effectively address the needs of the applicant. This stage allows proper identification actions with involvement of specialist and is in line with the provisions of the directives (Article 22 of the Recast Reception Directive and indent 29 of the Recast Procedures Directive). While the first two stages of identification are necessary and form one mechanism, a third stage may be activated, if needs arise at more advanced stage of asylum procedure.

79 80

Recast Asylum Procedures Directive (n 13) Article 31(7)(b). This questionnaire for early identification of asylum seekers having suffered traumatic experiences has been developed by the eu project to facilitate the process of receiving asylum seekers in accordance with the directives of the European Council and it facilitates the early recognition of persons having suffered traumatic experiences, e.g. victims of torture, psychological, physical or sexual violence. More information: accessed on 11 June 2014.

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3) Third stage of identification of special needs. The asylum official while c­ onducting the substantive interview with an asylum seeker shall determine if the statements of the person, appearance or behaviour raise the reasons to believe that a person is vulnerable. If any indications appear, the official upon completion of the interview shall refer the applicant back to the second stage of identification by preparing a request to the reception centre to organise/review the assessment and documentation of health and (or) psychological evaluation of the applicant’s state. Special mark shall be added to the special needs identification form and measures assigned earlier could again be amended, expanded, etc. Worthwhile noting, as already explored under Section 3 of this Chapter, that identification of vulnerability and special needs is a continuous process. For example, in Finland, the night staff of the reception centre is required to keep records of night events, such as sleeping disorders and this log is then transmitted to the day workers.81 Thus, if any official, social worker, Non-Governmental Organisation representative or other persons working with asylum seekers, notices any signs of vulnerability, he/she shall approach the central asylum authority with a request to review the assessment of special needs. 5 Conclusions (a) The notion of vulnerability in the present state of eu asylum law allows capturing new forms of vulnerability based on individual circumstances. However, not every person who is vulnerable would receive special treatment in reception and asylum procedures, as there is a requirement to link this treatment to the existence of special needs, which need to be established on individual basis. Vulnerability thus could be defined with reference to a non-exhaustive list of special situations, while special needs refer to an exhaustive list of conditions or causes. While vulnerability is a cause, the special needs are a result, which the eu is aiming to address. (b) Whereas the directives are modest on how the vulnerability identification mechanisms should look like, the obligations to set up identification procedures are there, while the link between assessment of special needs and procedural guarantees in both directives confirms that there should be one common procedure for the assessment of vulnerability and needs. As a result of this common assessment, a person identified as vulnerable should be afforded special treatment with regard to reception and/or procedures, but taking into 81

De Bauche (n 26) 151.

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account though that the needs may differ in terms of reception and procedures, and the single procedure shall address both of these. The system should also encompass both the pre-existing needs and those that may emerge as a result of the asylum procedure. (c) The new generation directives do not establish a mandatory format for identification procedure for vulnerable persons as leading to a separate decision on vulnerability (special needs), against which the Member States would have to provide an effective remedy, but it moves towards this direction by setting the minimum criteria for assessment of vulnerability and special needs. The establishment of proper identification of vulnerable applicants’ mechanism that would respond to new obligations under second generation asylum instruments shall take into account: (i) the involvement of trained first contact officers in preliminary identification and application of presumption of vulnerability in case of minimal indications of vulnerability, that could be rebutted later in the procedure; (ii) the reliance on specialists who could examine the social, psychological and health needs and fix the signs of trauma or other vulnerability; (iii) the involvement of decision maker, even if a separate decision on vulnerability is not required, to decide on the status of applicant as vulnerable and approve the list of special needs in each concrete situation; (iv) the need to detect vulnerability and establish special needs at any stage of the asylum procedure, thus monitoring and updating information during the whole period of asylum procedure is needed. (d) The vulnerability of the asylum seeker as such is not a guarantee for a positive protection decision, but properly identified and recorded vulnerability, as well as measures undertaken to address them, may serve as an effective tool in examining the case under the requirements of the eu Qualification Directive and would guarantee that no application of vulnerable applicants is unfairly rejected. For this approach to be widely accepted one may wait for some time for positions on ceas to ripe at the cjeu to read asylum instruments under one objective, rather than as each single ones with specific purposes.

PART 5 The Asylum Procedures Directive

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chapter 13

The Recast Asylum Procedures Directive 2013/32/ eu: Caught between the Stereotypes of the Abusive Asylum-Seeker and the Vulnerable Refugee Cathryn Costello* and Emily Hancox** 1 Introduction This piece provides a detailed analysis of the Recast Asylum Procedures Directive.1 Although we are now two decades into harmonisation of asylum procedures at the European Union (eu) level,2 we begin in Part 2 by revisiting the rationale for this process. While we may be ‘too far in’ to go back, unless we are clear what the aim of harmonisation is, we cannot assess whether we are meeting it. In the case of asylum ­procedures, we contend that the most persuasive rationale for procedural harmonisation, in an eu legally committed to refugee protection,3 is to ensure fair procedures, and to prevent a race to the bottom in procedural standards. Efficiency must serve fairness, not vice versa. Indeed by its nature, efficiency is about how to achieve ends, not which ends to aim for.4 * Andrew W. Mellon Associate Professor in International Human Rights and Refugee Law, University of Oxford. ** PhD Candidate, University of Edinburgh. The authors thank Madeline Garlick for sharing her  work on the Recast Asylum Procedures Directive, and Francesco Maiani and Minos Mouzourakis for their most helpful comments. All errors remain, of course, our own. 1 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, oj L180/60, 29 June 2013 (Recast Asylum Procedures Directive). 2 In 1992, the three London Resolutions formed the first soft-law method of harmonisation. The three resolutions covered countries in which there is generally no serious risk of persecution, manifestly unfounded applications for asylum and a harmonised approach to questions concerning host third countries. Council of the European Union, Council Resolution of 30 November 1992 on Manifestly Unfounded Applications for Asylum (‘London Resolutions’), 30 November 1992. 3 Charter of Fundamental Rights of the European Union, oj C 364/1, 18 December 2000 (entry into force 1 December 2009), Article 18; Consolidated version of the Treaty on the Functioning of the European Union, oj C 326/47, 26 October 2012 (entry into force 1 December 2009), Article 78. 4 See further, F. Ippolito and S. Velluti, ‘The Recast Process of the eu Asylum System: A Balancing Act between Efficiency and Fairness’ (2011) 30(3) rsq 24; M. Reneman, ‘Speedy

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However, the original Asylum Procedures Directive5 failed to meet this aim by a long margin, at least in part as it was agreed by the 15 national governments acting unanimously in the Council, leading to a Directive embodying low standards, great complexity, and apparently limitless room for derogation from its central guarantees.6 It facilitated the use of special procedures, in particular based around safe country concepts, both safe country of origin and safe third country.7 The Recast Asylum Procedures Directive is the product of the new, post-Lisbon legislative environment, so as Part 3 suggests, it comes with high hopes for improvement, particularly given the Parliament’s relatively new role as co-legislator on asylum matters. Part 3 briefly sets out the process leading to the adoption of the Recast. Part 4 contains the analysis of the measure. The Recast Asylum Procedures Directive contains many improvements on its predecessor, but overall our assessment is mixed, particularly if we assess it in terms of the objective of setting clear basic minimum standards of fairness. We attempt to explain this ambivalent outcome by suggesting that the Directive reflects two competing stereotypical views of the asylum-seeker. On the one hand, there is a strong notion that asylum procedures must work to weed out ‘abusive’ claims. The notion of ‘abuse’ pervades the measure, but is ill defined. It seems that normal procedures are not deemed fit to deal with some abusive applications, so additional procedural mechanisms are devised. In contrast, there is also a strong acknowledgement that some asylum-seekers are particularly vulnerable or have special needs (as will be seen, different terminologies are used in different contexts). Again, normal procedures are not regarded as suitable for these Asylum Procedures in the eu: Striking a Fair Balance between the Need to Process Asylum Cases Efficiently and the Asylum Applicant’s eu Right to an Effective Remedy’ (2014) 25(4) ijrl 717. 5 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status oj L 236/13, 13 December 2005 (Asylum Procedures Directive). 6 C. Costello, ‘The Asylum Procedures Directive and the Proliferation of Safe Country Practices: Deterrence, Deflection and the Dismantling of International Protection?’ (2005) 7(1) ejml 35; P. de Bruycker ‘Le niveau d’harmonisation législative de la politique européenne d’immigration et d’asile’ in O. Edström, F. Julien-Laferrière and H. Labayle (eds), La politique européenne d’immigration et d’asile: bilan critique cinq ans après le Traité d’Amsterdam (Bruylant 2005) 45; C. Costello, ‘The Asylum Procedures Directive in Legal Context: Equivocal Standards Meet General Principles’ in A. Baldaccini, E. Guild and H. Toner (eds), Whose Freedom, Security and Justice? eu Immigration and Asylum Law after 1999 (Hart 2007). 7 Costello, ‘The Asylum Procedures Directive and the Proliferation of Safe Country Practices’ (n 6).

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vulnerable souls either, so further procedural mechanisms are devised, and they are released from the rigours of the procedures devised for the abusers. As we argue, these stereotypes create complexity, and crowd out the basic notion of refugee status determination (rsd) as a process for recognizing refugees, on the assumption that many (although of course not all) of those who apply will be so recognized. 2

Why Harmonise Procedures?

2.1 International Refugee and Human Rights Law When we look at the international refugee regime, legally grounded in the 1951 Convention on the Status of Refugees and its 1967 Protocol (Geneva Conven­ tion), we note that it does not contain procedural rules for determining who is a refugee. It assumes that the refugee population is readily identifiable, and accords them status, a defined package of rights. Indeed, as the United Nations High Commissioner for Refugees (unhcr) reiterates, rsd is declaratory rather than constitutive.8 Over time, the issue of how to determine who is a refugee came to greater prominence, with the unhcr Handbook succeeding in creating a soft-law framework for rsd by States.9 Nonetheless, the variety of forms of rsd remains, and in many parts of the world, prima facie procedures are used on a group basis, particularly, but not exclusively, in cases of ‘mass influx’.10 This and other forms of group determination sometimes lead to the attribution of a temporary status, but not necessarily so. These practices should give us pause, as they illustrate that if applied appropriately, protection may be afforded refugees, without intensely individualised and judicialised procedures. This brief global excursus is simply to remind us that refugee protection requires refugees to be 8

9

10

unhcr, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, un Doc. HCR/IP/4/ Eng/REV.1, December 2011, para 28. Of course, much rsd around the world is conducted by unhcr rather than by States. In a recent review of its mandate for rsd, unhcr noted the importance of having States do rsd: unhcr, Providing for Protection: Assisting States with the Assumption of Responsibility for Refugee Status Determination – A Preliminary Review, PDES/2014/01, March 2014. On the soft law character of the Handbook, see F. Maiani, ‘Les procédures nationales d’asile et leur environnement juridique international: encadrement, dialogue, apprentissage’ (2013) 28 asyl 21. M. Albert, ‘Prima Facie Determination of Refugee Status: An Overview and Its Legal Foundation’ (2010) rsc Working Paper Series No. 55.

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recognized as such, but does not demand any particular form of procedures for this. So, at the international level, we seem to manage fine, or at least ok, without formal procedural harmonisation. International human rights law has now come to have a defining influence on international refugee law. This is most well-established in creating a linkage between human rights violations and the central international refugee law concept of persecution.11 However, it also extends to procedural matters, as international human rights law demands that rights protection be effective and that rights violations be subject to effective remedies. Thus, for instance, as will be discussed further below, many issues concerning asylum procedures in Europe come before the European Court of Human Rights (ECtHR) in Strasbourg, which now routinely finds deficiencies in asylum procedures which exposed individuals to an unacceptable risk of refoulement, typically as violations of Articles 3 and 13 of the European Convention on Human Rights (echr).12 Under the Inter-American system, further protections for asylum-seekers have also been developed.13 These judicial interventions contribute to procedural harmonisation, in that certain procedural practices become defined elements of the requisite ‘effective remedy’ under international human rights law. As will be seen, one of the notable features of the Recast Asylum Procedures Directive drafting process is the impact of Strasbourg case law, with certain improvements introduced to reflect the jurisprudence, as discussed in Part 4 below. However, the Recast is by no means fulsome in its embodiment of the Strasbourg standards, and on some key issues (automatic suspensive effect and legal aid, for instance) may set up new rounds of litigation as domestic practices ostensibly legitimated by the Recast lead to practices in tension with the echr. All in all though, the Recast illustrates that international human rights law (in particular the Strasbourg court) does provide a forum for developing important principles of procedural fairness, which provide minimum standards to which regional harmonisation ought to adhere. 11

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As reflected in 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, oj L 304/12, 30 September 2004 (2004 Qualification Directive). See further the contribution of H. Battjes in this volume. Case 33/76 Rewe-Zentralfinanz [1976] ecr 1989; Case 45/76 Comet [1976] ecr 2043. See further M. Dougan, National Remedies before the Court of Justice (Hart 2004); T. Tridimas, The General Principles of ec Law (2nd edn, Oxford University Press 2006). D. Cantor and S. Barichello, ‘The Inter-American Human Rights System: A New Model For Integrating Refugee and Complementary Protection?’ (2013) 17(5–6) ijhr 689.

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To conclude, neither international refugee law nor international human rights law requires procedural harmonisation. Both systems contribute to harmonisation by setting forth principles on fair procedures that apply to rsd (if it is done), and what sort of remedies should be applicable for rights protection to be effective. So while both bodies of law constrain any regional harmonisation that takes place, neither in itself provides a rationale for that process. 2.2 At the eu Level Accordingly, to identify the rationales for procedural harmonisation, we must look for reasons specific to the eu context. Before we examine the official rationales within the Common European Asylum System (ceas), it may be worth recalling that in many if not most fields, substantive eu harmonisation proceeds without detailed procedural harmonisation. In these contexts, the requirements of equivalence and effectiveness constrain how domestic procedures should work, but no more.14 We also find positive mutual recognition in many contexts, without procedural harmonisation. For instance, family permits for the family members of eu citizens are valid across the eu, even in the absence of procedural harmonisation.15 These examples illustrate that, under the normal decentralized practices of the eu, procedural harmonisation is a relative rarity. The institutional structure applying to asylum-seekers looks anomalous: we are moving to a system of tighter procedural harmonisation, with ostensibly common substantive rules, but no mutual recognition of positive determinations.16 This institutional o­ ddity 14 15

16

See further P. Craig and G. de Burca, eu Law: Text, Cases and Material (5th edn, Oxford University Press 2011) 218–255. Case C-202/13 McCarthy [2014] oj C 189/6. For analysis of this ruling, see S. Peers, ‘The cjeu Confirms Short-Term Free Movement Rights For eu Citizens’ Third-Country Family Members’ eu Law Analysis (18 December 2014) accessed 25 January 2015. The exception is found in the amendment to the Long-Term Residents Directive, which permits refugees to move to other eu States after five years lawful residence: Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents oj L16/44, 23 January 2004 (Long-Term Residents Directive), as amended by Directive 2011/51/EU of the European Parliament and of the Council of 11 May 2011 amending Council Directive 2003/109/EC to extend its scope to beneficiaries of international protection oj L 132/1, 15 May 2011. At least half of the time they spend as asylum-seekers will count to that five years, but this is subject to further conditions. Mutual recognition of negative asylum decisions is however institutionalised. In effect, the Dublin system means that asylum-seekers have one-shot: see Regulation

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should require us to think twice: Member States seem to trust one another enough to recognize rejections of asylum claims, but not the recognition of refugees. Further procedural harmonisation, under these conditions, could serve as an additional trust-building mechanism, but such a role is not obvious. Under these conditions, we suggest that procedural harmonisation requires additional justification: if it is not needed for some eu statuses, which are mutually recognized without uniform procedures, why for others? There would seem to be needed a sector-specific rationales particular to the asylum context. We search for such rationales in the next section. 2.3 Asylum-Specific Rationales The official discourse surrounding the ceas identifies a composite set of objectives in relation to procedural harmonisation. For instance, the Stockholm Programme provides that: While ceas should be based on high protection standards, due regard should also be given to fair and effective procedures capable of preventing abuse. It is crucial that individuals, regardless of the Member State in which their application for asylum is lodged, are offered…the same level [of treatment] as regards procedural arrangements and status determination. The objective should be that similar cases should be treated alike and result in the same outcome.17 The Commission has stated that a ‘common asylum procedure should be fast  and fair’.18 As regards the tools to meet this aim, full harmonisation has not been envisaged. The original Asylum Procedures Directive was expressly a ‘­minimum standards’ Directive. The Recast describes itself as setting ‘common standards’, but remains according to Article 5 thereof, minimum in effect. Accordingly, ‘Member States may introduce or retain more favourable standards

17 18

(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 stateless person (recast) oj L 180/31, 29 June 2013 (Dublin iii Regulation). European Council, The Stockholm Programme – An Open and Secure Europe Serving and Protecting the Citizens, oj C 115/1, 4 May 2010, s.6.2. European Commission, Amended Proposal for a Directive of the European Parliament and of the Council Common Procedures for Granting and Withdrawing International Protection Status (Recast), com(2011) 319, 1 June 2011, 1.

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on procedures for granting and withdrawing international protection’,19 so long as  these remain compatible with the rest of the Recast Asylum Procedures Directive. Also, harmonisation is partial, in that the measure aims to leave flexibility to ‘accommodate the particularities of national legal systems’.20 The European Council in setting out strategic guidelines following the Stockholm Programme, anticipates the implementation of the recast asylum acquis to pro­ duce ‘high common standards and stronger cooperation, creating a level playing field where asylum-seekers are given the same procedural guarantees and protection throughout the Union’.21 However, this claim seems more rhetorical than real, given that identical procedures are not in reality envisaged even under the Recast. These formulations set out generic notions of fairness, efficiency and uniformity, which treat harmonisation as both means and ends. Accordingly, our starting premise is that the principal aim of procedural harmonisation must be to ensure procedural fairness. Yet, as discussed above, the normal approach under eu law and international human rights law, as outlined above, is to establish principles to guide and constrain procedures, rather than detailed rules. Many diverse procedural forms are intrinsically fair, so there would seem to be little justification for general harmonisation in the name of fairness. However, there is a further dimension to the eu asylum context that we must recall: regulatory competition. The eu sets up a system where States compete to deflect and deter asylum-seekers. This has been well-established, and can be regarded as axiomatic in the conditions of relative internal freedom of movement within the eu.22 In this context, if we are committed to procedural fairness, the role of eu standards would be to prevent a regulatory race to the bottom by establishing clear minimum standards. In this context, we might reasonably conclude that principles of procedural fairness are not enough, as these require goodwill and judicial oversight to police, and opt instead to commit to clear procedural rules. If this is indeed the best rationale for procedural rules at the eu level, an eu institutional problem should come to mind: in the first phase of the ceas, the governments who were charged with agreeing the minimum procedural standards were the same executives who had an interest in maintaining their 19 20 21 22

Recast Asylum Procedures Directive, Article 5. European Commission (n 18) 2. Council of the European Union, European Council Conclusions 26/27 June 2014, euco 79/14 co eur 4 concl 2, 27 June 2014, para 7. G. Noll, Negotiating Asylum: The eu Acquis, Extraterritorial Protection and the Common Market of Deflection (Brill 2000).

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discretion to manipulate procedural standards downwards. The normal constraints on governmental dominance of eu law-making, namely the role of the Commission in controlling its draft proposal, and a role for the European Parliament, were lacking. In this context, perhaps the outcome of the original Asylum Procedures Directive was not surprising. More on that anon. For now, we conclude by reiterating that maintaining fair procedures, by committing to clear minimum standards, as detailed as necessary to preclude a race to the bottom, seems to be the strongest rationale for procedural harmonisation at the eu level. If we are committed to fairness, the notion of efficiency needs careful examination.23 There need be no conflict between the two, but they are qualitatively different notions. Fairness is a value, whereas efficiency merely describes a means of achieving an aim or acting coherently with a particular value, such that time, effort and costs are well spent. The aim of fairness must be set, and then questions of efficiency are by their nature secondary. Unfortunately, some practices undertaken in the name of efficiency are liable to undermine fairness. Making swift decisions is desirable, but not at the cost of fairness. Making swift positive decisions seems likely to be fairer than swift negative ones, given the relative risk of error in asylum procedures. Fair and fast best cohere in front-loading of administrative and support resources, to ensure good quality first instance decision; and in measure to recognize strong claims quickly. In the analysis in Part 4, we identify aspects of the Recast that reflect these tensions. 3

From the Original to the Recast Asylum Procedures Directive

Implementation of and Litigation on the Asylum Procedures Directive As mentioned in the preceding section, the original Asylum Procedures Directive was adopted by the 15 national governments (then comprising the Council) by unanimity. As a result, a lowest common denominator result was unsurprising. Enough ink has been spilled critiquing the original Asylum Procedures Directive.24 At the time of its drafting, unhcr and other asylum non-governmental organizations (ngos) made an unprecedented intervention 3.1

23 24

On the ambiguity of the concept of ‘efficiency’ in the asylum context, see A. Betts, ‘What Does “Efficiency” Mean in the Context of the Global Refugee Regime?’ (2006) 8 bjipr 148. See Costello, ‘The Asylum Procedures Directive in Legal Context’ (n 6).

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demanding that it be withdrawn, as it contained such poor rules which in their view would lead to breaches of substantive international legal commitments.25 Once the Asylum Procedures Directive was adopted, two rescue strategies emerged: firstly, it was hoped that in implementation, things would improve; and secondly, that via litigation, the Court of Justice of the European Union (cjeu) would reinterpret the most problematic provisions. On implementation, it seems that the Asylum Procedures Directive coincided with greater complexity and some degradation of procedural standards.26 As regards litigation, few preliminary references were made to try to tighten up problematic provisions of the Asylum Procedures Directive. It will be recalled that until 2009, only courts of highest instance could make reference on eu asylum matters. When that limitation on references was removed, and cases did begin to go to the cjeu, it tended to take a relatively cautious approach in its rulings, recognizing that the Asylum Procedures Directive left much leeway to national governments.27 This is notwithstanding the strong procedural protections offered under eu general principles which, it was originally argued, would offer the opportunity for judicial improvement.28 By contrast, the Strasbourg Court continues to be the venue for much litigation on asylum procedures, and has recently found that the application of procedures in France, Belgium and Spain failed to provide effective protection.29 The Recast took into account the 25

26

27 28 29

ecre, ilga Europe, Amnesty International, Pax Christi International, Quaker Council for European Affairs, Human Rights Watch, caritas-Europe, Médecins Sans Frontières, Churches’ Commission for Migrants, Save the Children in Europe, Call for Withdrawal of the Asylum Procedures Directive (22 March 2004); unchr, ‘Lubbers Calls for eu Asylum Laws Not to Contravene International Law’, Press Release, 29 March 2004; unchr, unhcr Regrets Missed Opportunity to Adopt High eu Asylum Standards’, Press Release, 30 April 2004. unhcr, Improving Asylum Procedures: Comparative Analysis and Recommendations for Law and Practice March 2010 accessed 25 January 2015 (Asylum Procedures Directive Study); European Commission, Report on the Applica­ tion of Directive 2005/85/EC on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status, com(2010) 465, 8 September 2010 (Asylum Procedures Directive Implementation Report). See also C. Costello, ‘Implementation of the Procedures Directive (2005/85) in the United Kingdom’ in K. Zwaan (ed), The Procedures Directive: Central Themes, Problem Issues, and Implementation in Selected Member States (Wolf Legal Publishers 2008) 111. Case C-69/10 Samba Diouf [2011] ecr I-07151; Case C-277/11 mm [2013] oj C 26/9; Case C-175/11 hid [2013] oj C 86/3. Costello, ‘The Asylum Procedures Directive in Legal Context’ (n 6). im v France Appl no 9152/09 (ECtHR, 2 February 2012); Hirsi Jamaa v Italy Appl no 27765/09 (ECtHR, 23 February 2012); Singh v Belgium Appl no 33210/11 (ECtHR, 2 October

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case law, in particular that of the Strasbourg Court, but not always in a straightforward or entirely fulsome manner. 3.2 The Recasting Process Against the background of eu enlargement from a Union of 15 to one of 28, domestic procedural implementation, piecemeal litigation, legislative reform became all the more important. The Commission proposed a Recast of the Asylum Procedures Directive in 2009,30 and issued an Amended Recast Proposal in 2011.31 The second proposal was necessary as the first failed to garner sufficient support from national governments in the Council, despite discussions in the Council for some time, particularly during the Spanish Presidency in 2010. It appears that national governments raised diverse objections based on the specificities of their own asylum procedures, as well as general concerns to limit procedural rights. Before the Commission issued the Amended Proposal, the European Parliament had issued its first reading position by April 2011.32 While this might lead one to expect that the Amended Proposal would seek to incorporate the views of the Parliament (given that the Directive would ultimately be adopted by the ordinary legislative procedure, so affording the Parliament a power of co-decision), instead the Commission gave great sway to the diverse and even idiosyncratic views of national governments. Space precludes a thorough analysis of the Amended Recast Proposal, but the unhcr has commented thereon,33 as have various ngos, including the Immigration Law Practitioners’ Association (ilpa),34 the European Council

30

31 32

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2012); me v France Appl no 50094/10 (ECtHR, 6 June 2013); Mohammed v Austria Appl no 2283/12 (ECtHR, 6 June 2013); ac v Spain Appl no 6528/11 (ECtHR, 22 April 2014). European Commission, Proposal for a Directive of the European Parliament and of the Council on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Beneficiaries of International Protection and the Content of the Protection Granted, com(2009) 551 final, Brussels, 21 October 2009. European Commission, Amended Proposal for a Recast Asylum Procedures Directive (n 18). European Parliament, European Parliament Legislative Resolution of 6 April 2011 on the Proposal for a Directive of the European Parliament and the Council on Minimum Standards on Procedures in Member States for Granting and Withdrawing International Protection, P7 ta(2011)0136, 6 April 2011. unhcr, unhcr Comments on the European Commission’s Amended Proposal for a Directive of the European Parliament and of the Council on Common Procedures for Granting and Withdrawing International Protection Status (Recast) com(2011) 319 Final, January 2012. ilpa, Comments on the Revised Commission Proposal of 1 June 2011 on Common Procedures for Granting and Withdrawing International Protection Status (Recast) com(2011) 319 Final, 5 December 2011.

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on Refugees and Exiles (ecre),35 the International Commission of Jurists36 and Statewatch.37 The recasting process on the Asylum Procedures Directive reflects a pattern identified in empirical scholarship on the new institutional setting of co-­ decision in the enlarged eu. In particular, as Lopatin has studied, the European Parliament has shifted away from the generally pro-refugee stance of the era when it had no real legislative clout, to a situation in which it has become increasingly willing to agree restrictive measures with the Council.38 3.3 The Recast Asylum Procedures Directive 3.3.1 The Ambivalent Outcome We note the European Commission’s public assessment of the key achievements of the Recast Asylum Procedures Directive: The new Asylum Procedures Directive is much more precise. It creates a coherent system, which ensures that asylum decisions are made more efficiently and more fairly and that all Member States examine applications with a common high quality standard. It sets clearer rules on how to apply for asylum: there have to be specific arrangements, for example at borders, to make sure that everyone who wishes to request asylum can do so quickly and effectively. Procedures will be both faster and more efficient. Normally, an asylum procedure will not be longer than six months. There will be better 35

ecre, Comments from the European Council on Refugees and Exiles on the Amended Commission Proposal to Recast the Asylum Procedures Directive (com(2011) 319 Final), 1 September 2011. 36 International Commission of Jurists, Compromising Rights and Procedures: icj Observations on the 2011 Recast Proposal of the Asylum Procedures Directive, September 2011 (icj 2011). 37 S. Peers, ‘Statewatch Analysis: Revised eu Asylum Proposals “Lipstick on a Pig”’ (2011) Statewatch Analysis No. 132 accessed 25 January 2015. 38 E. Lopatin, ‘The Changing Position of the European Parliament on Irregular Migration and Asylum under Codecision’ (2013) 51(4) jcms 740. See further J. Helstroffer and M. Obidzinski, ‘The eu Legislation Game: The Case of Asylum Law’ (2011) beta Working Paper 16/20114; J. Helstroffer and M. Obidzinski, ‘Codecision Procedure Bias: The European Legislation Game’ (2013) 36 Eur J Law & Econ 1. Contrast S. Espinoza and C. Moraes, ‘The Law and Politics of Migration and Asylum: The Lisbon Treaty and the eu’, in D. Ashiagbor, N. Countouris and I. Lianos (eds), The European Union after the Treaty of Lisbon (Cambridge University Press 2012) 156.

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training for decision-makers and more early help for the applicant, so that the claim can be fully examined quickly. These investments will save money overall, because asylum seekers will spend less time in state-­ sponsored reception systems and there will be fewer wrong decisions, so fewer costly appeals. Anyone in need of special help – for example because of their age, disability, illness, sexual orientation, or traumatic experiences – will receive adequate support, including sufficient time, to explain their claim. Unaccompanied children will be appointed a qualified representative by the national authorities. Cases that are unlikely to be well-founded can be dealt with in special procedures (‘accelerated’ and ‘border’ procedures). There are clear rules on when these procedures can be applied, to avoid well-founded cases being covered. Unaccompanied children seeking asylum and victims of torture benefit from special treatment in this respect. Rules on appeals in front of courts are much clearer than previously. Currently, eu law is vague and national systems do not always guarantee enough access to courts. As a result, many cases end up in with the European Court of Human Rights in Strasbourg, which is costly and creates legal uncertainty. The new rules fully comply with fundamental rights and should reduce pressure on the Strasbourg court. Member States will also become better equipped to deal with abusive claims, in particular with repetitive applications by the same person. Someone who does not need protection will no longer be able to prevent removal indefinitely by continuously making new asylum applications.39 In contrast, Steve Peers’ assessment is more mixed: The revised Directive definitely provides for certain improvements, as regards access to the procedure, the standards during the administrative decision-making (including deadlines), the extent of judicial review, the right to stay on the territory, the standards in special procedures, reductions in the number of exceptions and reduction of the complexity of the system (except as regards the exceptions relating to victims of torture et al and unaccompanied minors, which are respectively highly unclear and virtually unreadable; …). However, Member States still retain a good deal of flexibility to set fairly low standards as regards the special procedures 39

European Commission, A Common European Asylum System, MEMO/13/532, 12 June 2013.

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and in a couple of respects (as regards new listings of ‘super-safe third countries’ and a new exception from the right to legal aid) standards have been lowered. The important question of whether the list of accelerated proceedings is exhaustive or not is not clearly answered, and there is no improvement at all as regards the rules on legal aid (quite the reverse). Certainly many more improvements to this Directive could and should have been made.40 We share Peers’ more ambivalent assessment. We root this in our framing of the two stereotypes that seem to have informed the legislation, namely the ‘abusive’ and the ‘vulnerable’ applicant, with various procedural mechanisms aiming to deal with each category. The basic ideal that the asylum procedure should accord all claimants similarly, as the procedure itself identifies who is a refugee and who is not, is overtaken with procedural complexity, as different types of claims are siphoned into different systems. 4

Key Aspects of the Recast Asylum Procedures Directive

4.1 Access to Procedures Ensuring access to asylum procedures for those who reach the eu is a challenge. In some Member States, detention on arrival precludes access to information on asylum. In others, asylum must be sought by physically going to a particular place, rendering the act of claiming difficult. The Recast Asylum Procedures Directive makes significant improvements, by clarifying its scope of application (4.1.1); seeking to ensure access to asylum for detainees (4.1.2); clarifying the determining authority (4.1.3); and introducing rules on the registration of claims (4.1.4). Yet, welcome as these clarifications are, none of them addresses the most serious access challenge, namely the absence of safe routes to seek asylum from outside the eu. Various official policies preclude safe, legal access to asylum in the eu, ranging from visa policies and carrier sanctions, to illegal pushbacks and various forms of cooperation between eu and third country border officials, of varying degrees of formality.41 Some legal developments, such as 40 41

S. Peers, ‘The Second Phase of the Common European Asylum System – A Brave New World or Lipstick on a Pig?’ (2013) Statewatch Analysis No. 220, 15. For a recent survey, see J. Hathaway and T. Gammeltoft-Hansen, ‘Non-refoulement in a  World of Cooperative Deterrence’ (2014) U of Michigan Law & Econ Research Paper No. 14–016.

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the developing concept of ‘jurisdiction’ in international human rights law42 and eu law,43 may help bring some of these practices under legal control. However, these legal developments are not fully reflected in institutional practice. The lack of safe modes of entry to the eu has been widely noted in relation to the Syrian refugee crisis.44 Many mechanisms could be developed to allow asylum-seekers safe and legal access to the eu from countries of origin or transit, in particular forms of Protected Entry Procedures.45 Already set out is a roadmap to develop these procedures, starting with a more flexible use of the present Visa Code, which allows the issuance of humanitarian visas with limited territorial validity under derogation from normal entry requirements, and developing further eu rules on the issuance of protection visas.46 It is arguable that the Visa Code actually requires the issuance of such humanitarian visas if eu Member States are to meet their international and eu obligations.47 These matters are not addressed in the Recast Asylum Procedures Directive, understandable politically perhaps, but a serious protection gap nonetheless. 42 43

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See further C. Costello, ‘Courting Access to Asylum in Europe: Recent Supranational Jurisprudence Explored’ (2012) 12 hrlr 287. C. Costello and V. Moreno-Lax, ‘The Extraterritorial Application of the eu Charter of Fundamental Rights: From Territoriality to Facticity, the Effectiveness Model’ in S. Peers, T. Hervey, J. Kenner and A. Ward (eds), Commentary on the eu Charter of Fundamental Rights (Hart Publishing 2014) 1658. unhcr, Syrian Refugees in Europe: What Europe Can Do to Ensure Protection and Solidarity, 11 July 2014 accessed 25 January 2015. European Commission, An Open and Secure Europe: Making it Happen, com(2014) 154, 11 March 2014 develops the idea of Protected Entry Procedures. These are defined by Noll as ‘an overarching concept for arrangements allowing a non-national to approach the potential host state outside its territory with a claim for asylum or other form of international protection and to be granted an entry permit in case of a positive response to that claim, be it preliminary or final’ in G. Noll, J. Fagerlund and F. Liebaut, Study on the Feasibility of Processing Asylum Claims Outside the eu against the Background of the Common European Asylum System and the Goal of a Common Asylum Procedure (European Commission – Danish Centre for Human Rights 2002) 3. C. Hein and M. Damato, Exploring Avenues for Protected Entry in Europe (Italian Council for Refugees 2012). This is based on the wording of Regulation (ec) No. 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) oj L 243/1, 15 September 2009, and the application by analogy of the recent cjeu judgment in Case C-84/12 Koushkaki [2014] oj C 52/7. See further U. Iben Jensen, Humanitarian Visas: Option or Obligation? (2014) European Parliament, dg ipol, PE509.986, September 2014.

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The impact of the Recast Asylum Procedures Directive on access is significant, but it does not deal with access from outside the eu. 4.1.1 The Scope of the Recast Asylum Procedures Directive The Recast improves access in the following ways: first, it has a broader scope than the Asylum Procedures Directive and applies to all applications for international protection, both refugee status and subsidiary protection. All Member States had moved to apply a single procedure to both refugee status and subsidiary protection over time anyway, with the exception of Ireland who, at the time of writing, is in the process of introducing a single procedure.48 In mm, the cjeu found the Irish procedures for subsidiary protection lacking, as they did not afford effective procedural and judicial protection.49 The Recast Asylum Procedures Directive may also be applied to any applications for protection falling outside the Recast Qualification Directive.50 Member State responses to the Syrian refugee crisis demonstrate that ad hoc national statuses remain an important aspect of how States respond to refugee arrivals.51 The application for international protection may be made in the territory, at the border, in the transit zones or in the territorial waters of the Member States.52 The addition of the reference to the ‘territorial waters’ is significant, given increasing maritime arrivals. However, it will also be recalled that duties to asylum-seekers and migrants are triggered under international human rights law once a state exercises ‘jurisdiction’, which may occur outside the territorial waters as Hirsi v Italy53 illustrates. Moreover, eu duties, including under the Schengen Borders Code and even more broadly the eu Charter of Fundamental Rights, are potentially more extensive.54 It is still the case that 48

49 50

51 52 53 54

aida, Highlights from Ireland 2014: On the Way to a Single and Shorter Procedure for People Seeking Asylum in Ireland? (9 September 2014) accessed 02 February 2015. Case C-277/11 mm [2013] oj C 26/9. 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), 20 December 2011, oj L 337/9 (Recast Qualification Directive). unhcr, Syrian Refugees in Europe: What Europe Can Do to Ensure Protection and Solidarity (n 44). Asylum Procedures Directive, Article 3(1); Recast Asylum Procedures Directive, Article 3(1). Hirsi Jamaa v Italy Appl no 27765/09 (ECtHR, 23 February 2012). Costello and Moreno-Lax (n 43).

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Member States may require the application to be made in person and/or at a designated place.55 If the applicant applies to the wrong body, the Asylum Procedures Directive required Member States to ensure that authorities likely to be addressed by someone wishing to make an application for asylum could advise that person on how and where to make such an application or require these authorities to forward the application to the competent authority.56 The  Recast Asylum Procedures Directive extends this to require authorities such as the police, border guards, immigration authorities and personnel of detention facilities to have the relevant information and to ensure that their personnel receive the necessary level of training to advise applicants.57 The Recast Asylum Procedures Directive now also requires that Member States ensure a person has an effective opportunity to lodge an application as soon as possible.58 4.1.2 Access to Asylum for Detainees Detention of asylum-seekers on arrival would seem often to be of dubious legality, given that international human rights law and eu law now contain more detailed requirements concerning detention.59 The Asylum Procedures Directive stated merely that Member States were not to hold a person in detention for the sole reason that she was an applicant for asylum.60 The Recast Asylum Procedures Directive requires that the grounds for and the conditions of detention, as well as the guarantees available to detained applicants, be in accordance the Recast Reception Conditions Directive.61 When an applicant is detained, there should be ‘speedy judicial review’.

55 56 57 58 59

60 61

Asylum Procedures Directive, Article 6(1); Recast Asylum Procedures Directive, Article 6(3). Asylum Procedures Directive, Article 6(5). Recast Asylum Procedures Directive, Article 6(1) third sub-para. Recast Asylum Procedures Directive, Article 6(2). 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, oj L 180/96, 29 June 2013 (Recast Reception Conditions Directive); Saadi v uk Appl no 13229/03 (ECtHR, 29 January 2008). Note that Saadi v uk has been widely criticised, and in some more recent cases, the ECtHR has accepted that there is some merit in the argument that as asylumseekers have an eu right to reside in the eu while their claims are processed, regarding them as ‘attempting to effectuate an irregular entry’ once their claims are registered is problematic: Suso Musa v Malta Appl no 42337/12 (ECtHR, 23 July 2013). Asylum Procedures Directive, Article 18. Recast Asylum Procedures Directive, Article 26.

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The Recast Asylum Procedures Directive works on the premise that some will be detained, and aims to ensure that detention should not impede access to making asylum claims. Individuals who are in detention facilities or at border crossing points must also be given information about how to make an application for international protection under the Recast Asylum Procedures Directive. Article 8(1) requires Member States to provide such persons with the information necessary and the opportunity to make an application for international protection. Arrangements for interpretation are to be made to the extent necessary to facilitate access to the asylum procedure. The Preamble explains further that this means in the least the ‘basic communication necessary to enable the competent authorities to understand if persons declare their wish to apply for international protection should be ensured through interpretation arrangements’.62 Organizations and persons providing advice and counselling to applicants are also to be given effective access to applicants present at border crossing points, including transit zones at external borders.63 Member States may draw up rules regarding the presence of such organizations and persons, in particular the requirement that prior agreement of the competent authorities is obtained. Limits on such access may only be imposed where national law deems them objectively necessary for the security, public order or administrative management of the crossing points concerned, provided that access is not thereby severely restricted or rendered impossible. As Garlick notes, while these provisions ‘promise significantly improved access to advice for people held at borders or in transit zones’, much depends on how the exceptions are applied.64 4.1.3 The Determining Authority Member States are to designate a determining authority ‘responsible for an appropriate examination of applications’.65 The determining authority is defined as ‘any quasi-judicial or administrative body in a Member State responsible for examining applications for international protection competent to take decisions at first instance in such cases’.66 62 63 64 65 66

Recast Asylum Procedures Directive, Preamble, Recital 28. Recast Asylum Procedures Directive, Article 8(2). M. Garlick, ‘The Procedures Directive’ in S. Peers, E. Guild, M. Garlick and V. Moreno-Lax (eds), eu Immigration and Asylum Law (2nd edn, Vol. 3, Martinus Nijhoff 2014) 229. Asylum Procedures Directive, Article 4(1); Recast Asylum Procedures Directive, Article 4(1). Recast Asylum Procedures Directive, Article 2(f).

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The recast places a number of obligations on Member States to regarding the quality of the determining authority. This reflect the objective of ‘frontloading’, namely ensuring that the determining authority making first-instance decisions is fully equipped to assess claims and take high-quality decisions thereby avoiding the need for such decisions to be overturned on appeal. First, the determining authority is to be ‘provided with appropriate means, including sufficient competent personnel to carry out its tasks’.67 Secondly, training is to be provided for the personnel of the determining authority. The training is to cover essentially the same areas as the European Asylum Support Office provides. This includes information on international human rights and the eu asylum acquis, how to handle asylum applications from minors and vulnerable persons with specific needs, interview techniques, utilising expert medical and legal reports and how to produce and use country of origin information.68 Member States must also ‘take into account the relevant training established and developed by the European Asylum Support Office (easo)’.69 Though it does not state exactly what this means in practice, it would seem to refer to the possibility of using the training courses established by easo for asylum authorities.70 The determining authorities of the territory in which the application is made are to deal with the application,71 even if the application is made to the authorities of another Member State carrying out immigration controls there. This provision envisages juxtaposed controls, and seeks to ensure that the responsibility of the territorial State is assured. There are, however, a number of exceptions in the Recast Asylum Procedures Directive allowing other authorities to examine applications when processing cases within the Dublin Regulation or when granting or refusing permission to enter at the border or in transit zones.72 This is a reduced list compared to the Asylum Procedures Directive, which allowed other authorities to deal with the  application under national security provisions, to conduct preliminary 67 68

69 70 71 72

Recast Asylum Procedures Directive, Article 4(1). Recast Asylum Procedures Directive, Article 4(3) which requires ‘Member States shall provide for relevant training which shall include the elements listed in Article 6(4)(a) to (e) of Regulation (eu) No. 439/2010’. Recast Asylum Procedures Directive, Article 4(3). European Asylum Support Office, Training and Quality accessed 2 February 2015. Asylum Procedures Directive, Article 4(1), second sub-para; Recast Asylum Procedures Directive, Article 4(5). Recast Asylum Procedures Directive, Article 4(2).

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examinations in the case of a subsequent application, or when an application was made from a safe third country. 4.1.4 Registration of Claims The Recast establishes time limits for registering asylum applications. Following an application for international protection, the determining authority is to register the asylum-seeker within three working days. If the application is made to another authority likely to receive such applications, but not competent for the registration under national law, registration must take place no later than six working days after the application is made.73 The Recast clarifies that ‘an application for international protection shall be deemed to have been lodged once a form submitted by the applicant or, where provided for in national law, an official report, has reached the competent authorities of the Member State concerned’.74 If a ‘large number of simultaneous applications’ for international protection make it very difficult in practice to respect the time limit, Member States may provide for that time limit to be extended to ten working days.75 ecre notes that rather than extending the time limit another option might have been to temporarily rely on the personnel of another authority given the purely administrative nature of registration.76 The ‘large number’ exception recurs throughout the Recast, for instance as regards time limits for examination,77 and in relation to border procedures.78 This exception is worryingly vague and ecre considered it as amongst the changes made in the Commission’s amended proposal,79 ‘apparently justified by the need for efficiency’.80 This proviso is of course amenable to judicial clarification. The cjeu would be required to give the ‘large number’ concept a purposive interpretation, and one which did not undermine the effectiveness of the guarantees in the Recast.81 Accordingly, despite the text’s silence on the 73 74 75 76 77 78 79 80 81

Recast Asylum Procedures Directive, Article 6(1). Recast Asylum Procedures Directive, Article 6(4). Recast Asylum Procedures Directive, Article 6(5). ecre (n 35) 14. Recast Asylum Procedures Directive, Article 31(3)(b). Recast Asylum Procedures Directive, Article 43(3). European Commission, Amended Proposal for a Recast Asylum Procedures Directive (n 18). ecre (n 35), 5. Recast Asylum Procedures Directive, Preamble, Recital 18 deems it in the interest of both Member States and asylum-seekers ‘that a decision is made as soon as possible on applications for international protection, without prejudice to an adequate and complete examination being carried out’.

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threshold for establishing a large number of claims, it would seem to require a surge in applications that is a large and unanticipated increase, rather than simply allowing governments to claim that the volume of arrivals per se permitted recourse to this proviso. In the background to this exception are various on-going easo pilot projects, where officials from other Member States assist with preliminary aspects of the asylum process in other countries.82 Although labelled ‘joint processing’, these are far from the formal joint processing of actual decisions, and seem more geared, at least at present, to allow for learning opportunities and developing trust across Member States. easo so far has conducted eight preliminary joint processing pilot projects across 12 Member States covering issues such as unaccompanied minors, country of origin information, registration and case management and assessments of vulnerability. 4.2 Inadmissible Applications Like its predecessor, the Recast sets out circumstances where applications may be deemed inadmissible, and Member States can refrain from examination of the substantive claim.83 Article 10(1) of the Recast Asylum Procedures Directive makes clear that this cannot be done on the sole ground that an application  was not submitted as soon as possible. Importantly, the Recast Asylum Procedures Directive appears to make the list of circumstances in which a Member State might find an application inadmissible exhaustive, using the language of ‘only if’ rather than ‘if’.84 The circumstances set out are: where another Member State has granted international protection; where a country which is not a Member State is considered as a first country of asylum; where there is a safe third country for the applicant; when the application is a subsequent application without any new elements or findings having arisen or having been presented by the applicant; and where the applicant lodges an application, after he or she has consented to have his or her case be part of an application lodged on his or her behalf, and there are no facts relating to the dependant’s situation which justify a separate application. An application made by an unaccompanied minor can only be considered inadmissible if there is a country that may be considered a safe third country for the applicant, provided that to do so is in the minor’s best interests.85 82 83 84 85

easo, Newsletter – September 2014 accessed 3 February 2015. Asylum Procedures Directive, Article 25; Recast Asylum Procedures Directive, Article 33. Asylum Procedures Directive, Article 25(2); Recast Asylum Procedures Directive, Article 33(2). Recast Asylum Procedures Directive, Article 25(6)(c).

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The Recast Asylum Procedures Directive introduces the possibility for applicants to present their views regarding the application of inadmissibility criteria in their particular circumstances before the determining authority decides on the admissibility of an application for international protection.86 Member States are thus required to conduct a personal interview and may omit this only in the case of a subsequent application – it will be recalled that subsequent applications are assumed often to be abusive. Member States may provide that personnel of authorities other than the determining authority conduct the personal interview on the admissibility of the application for international protection.87 In such cases, Member States are to ensure that such personnel receive in advance the necessary basic training, in particular with respect to international human rights law, the Union asylum acquis and interview techniques.88 4.2.1 First Country of Asylum The next ground for considering an application inadmissible under Article 33(2) is where there is a first country of asylum. A country is designated as a first country of asylum if an applicant has been recognized in that country as a refugee and can still avail him or herself of that protection, or where they otherwise enjoy sufficient protection in that country, including benefiting from the principle of non-refoulement.89 This is on the proviso that the applicant will be readmitted to that country. Member States are given the option to consider the criteria for classifying a country as a safe third country before applying the first country of asylum concept. However, as in the original Asylum Procedures Directive, this remains optional and those safeguards are not assured. The Recast introduces the requirement that ‘the applicant shall be allowed to challenge the application of the [first country of asylum] concept to his or her particular circumstances’. This is an important additional safeguard, but the Recast does not spell out that, if the first country of asylum concept is deemed inapplicable, the claim should be assessed in the normal process. 4.2.2 Safe Third Country Member States may apply the safe third country concept only when satisfied that the applicant’s life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group, or political opinion; the principle of non-refoulement is respected; removal will not violate the right 86 87 88 89

Recast Asylum Procedures Directive, Article 34. Recast Asylum Procedures Directive, Article 34(2). Recast Asylum Procedures Directive, Article 34(2). Asylum Procedures Directive, Article 26; Recast Asylum Procedures Directive, Article 35.

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to freedom from torture and cruel, inhuman or degrading treatment; and the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention.90 Article 38(1) (b) of the Recast Asylum Procedures Directive adds the requirement that there must be no risk of serious harm as defined in the Recast Qualification Directive. As previously, Member States are required to adopt legislation setting out the required connection between the person seeking asylum and the third country, making it reasonable for that person to go to that country. The methodology to be used by competent authorities in determining whether the safe third country concept may be applied to a particular country or to a particular applicant is also to be laid down by national law. This must include case-by-case consideration of the safety of the country for a particular applicant and/or national designation of countries considered to be generally safe. Finally, national legislation must provide for an individual examination of whether the third country concerned is safe for a particular applicant. Under such rules, the applicant must be able to challenge the application of the safe third country concept on the grounds that they would be subjected to torture, cruel, inhuman or degrading treatment or punishment. As with first country of asylum, Article 38(2)(c) of the Recast Asylum Procedures Directive allows the applicant to challenge the existence of a connection between them and the third country. Once a decision is made that there exists a safe third country for the applicant, the Member Sate is to inform the applicant and provide them with a document for the authorities of the third country, in the language of that country, informing them that the application has not been examined in substance.91 It is doubtful whether this will really work to ensure access to the asylum procedures in the safe third country to which deportation is contemplated. If the safe third country does not permit the applicant to enter its territory, Member States are to ensure access to a first instance procedure.92 The impact of the safe third country concept is difficult to measure. unhcr, in its research on the application of key provisions Asylum Procedures Directive across selected Member States, found that only in Spain and the United Kingdom (uk) was the safe third country concept applied in law and in practice (the report did not consider the super safe third country concept) applied.93 The uk seems 90 91 92 93

Asylum Procedures Directive, Article 27; Recast Asylum Procedures Directive, Article 38. Asylum Procedures Directive, Article 27(3); Recast Asylum Procedures Directive, Article 38(3). Asylum Procedures Directive, Article 27(4); Recast Asylum Procedures Directive, Article 38(4). unhcr, Asylum Procedures Directive Study (n 26) 300.

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only to have applied the concept to the United States of America (usa), Switzerland and Canada.94 Spain has applied the concept on a case-­by-case basis to some Latin American and African States but reportedly never uses the concept as the sole ground for rejecting an application or declaring it  inadmissible.95 This led unhcr to conclude that ‘while Member States appear to support the notion, the concept is largely symbolic, and holds little practical use’.96 4.2.3 Super Safe Third Country The Recast also carries the ‘Super Safe Third Country’ concept over from the Asylum Procedures Directive. If a competent authority has established that the applicant for asylum is seeking to enter or has entered illegally into its territory from a European safe third country, the Member State may provide that no, or no full, examination of the application and the safety of the applicant shall take place.97 The criteria for being designated a European safe third country are more stringent than those for a safe third country. To be designated a European safe third country, a country must have ratified and observe the provisions of the Geneva Convention without any geographical limitations; have in place an asylum procedure prescribed by law; and have ratified the echr and observe its provisions, including the standards relating to effective remedies.98 Even in the context of the Dublin System, the cjeu has made clear that conclusive presumptions of safety are not acceptable.99 Under the Asylum Procedures Directive, it was for the Council to designate which countries were European safe third countries,100 however the cjeu annulled the listing mechanism for breaching eu constitutional requirements.101 Evidently, the option of creating a listing mechanism that would 94 95 96 97 98 99

Ibid 302. Ibid 300. Ibid 305. Asylum Procedures Directive, Article 36; Recast Asylum Procedures Directive, Article 39. Recast Asylum Procedures Directive, Article 36(2). Joined Cases C-411/10 and C-493/10 ns v Secretary of State for the Home Department me v Minister for Justice, Equality and Law Reform. [2011] ecr I-13905, para 103. 100 Asylum Procedures Directive, Articles 36(2)(d) and (3). 101 Case C-133/06 Parliament v Council [2008] ecr I-3189. The cjeu annulled and severed the provisions allowing for mandatory common lists of safe countries (third and of origin) to be adopted, as the procedure envisaged (unanimity in the Council and mere consultation of the European Parliament) violated the Treaty. See further P. Craig, ‘Casenote on Case C-133/06 ep v Council (Delegation of Legislative Power)’ (2009) 46 CMLRev 1265.

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comply with the Treaties (presumably one with some input from the European Parliament, and majority in the Council) was not palatable. Accordingly, the idea of common lists is not found in the Recast Asylum Procedures Directive. Instead, Member States are to inform the Commission periodically of the countries to which this concept is applied.102 As Peers notes, the effect is that there can be new listings of ‘super safe third country’, which amounts to a ­lowering of standards from the Asylum Procedures Directive.103 After the eu enlargement, the potentially ‘super safe’ countries in the European region are fewer: writing in 2010, ecre noted that the concept could potentially be applied to asylum-seekers entering via Ukraine. ecre criticised the potential for this given that Ukraine was then a critical entry point for Chechen asylum-seekers, meaning this provision might in practice result in refoulement.104 As with the first country of asylum and safe third country concepts, the Recast Asylum Procedures Directive grants the applicant the possibility ‘to challenge the application of the concept of European safe third country on the grounds that the third country concerned is not safe in his or her particular circumstances’.105 As we will discuss later in Part 4.15, while there is a right to appeal against a decision not to examine or examine fully an application due to the ‘super safe third country’ concept, there is no clear-cut automatic entitlement to suspend the effect of removal pending this appeal. The provisions on suspensive effect are complex.106 This contrasts with appeals following the application of the ordinary safe third country concept, which are suspensive.107 4.3 Right to Remain Pending a Decision Applicants are allowed to remain in the Member State until a decision at first instance is made.108 There are two exceptions here which would appear to be exhaustive. The first is where the application is a subsequent application.109 The second is where extradition is required to another Member State pursuant to a European Arrest Warrant, or to a third country, or to international courts or tribunals.110 The Recast Asylum Procedures Directive requires that the authorities be satisfied that extradition will not amount to direct or indirect 102 103 104 105 106 107 108 109 110

Recast Asylum Procedures Directive, Article 39(7). Peers (n 40) 15. ecre (n 35) 42. Recast Asylum Procedures Directive, Article 39(3). Recast Asylum Procedures Directive, Article 46(6)(d). Recast Asylum Procedures Directive, Article 46(5). Asylum Procedures Directive, Article 7; Recast Asylum Procedures Directive, Article 9. Recast Asylum Procedures Directive, Article 9(2). Recast Asylum Procedures Directive, Article 9(2).

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refoulement.111 It would appear that this determination is to be made by the extradition authorities, not the asylum ones, which itself may pose a risk of refoulement.112 The right to remain in the appeal stage links with the suspensive effect of appeals, which as is set out below (4.15.2), is a requirement of the echr if there is a risk of treatment contrary to Article 3 echr. Whether the Recast Asylum Procedures Directive meets this requirement is discussed further below (4.15.2). 4.4 Basic Procedural Guarantees Member States are to ensure that the examination of an application is appropriate.113 This should include, first, that decisions are made individually, objectively and impartially. Secondly, that the personnel responsible for examining applications and taking decisions have access to precise and up-to-date information obtained from various sources regarding the general situation prevailing in applicants’ countries of origin and, where necessary, countries through which they have transited. Thirdly, the personnel examining applications and taking decisions know the relevant standards applicable in the field of asylum and refugee law. The Recast Asylum Procedures Directive also introduces the possibility to seek advice from experts on particular issues such as medical, ­cultural, religious, child-related or gender issues.114 This latter provision is an instance where we see the notion of applicants with special needs or characteristics requiring differentiated treatment. However, the language of the provision is facultative, only allowing such advice to be sought, not requiring its use. Member States are also to ensure a number of particular guarantees for applicants.115 Applicants are to be informed of their rights and obligations during the procedure, the possible consequences of not complying with their obligations and not cooperating with the authorities, the consequences of an explicit or implicit withdrawal, and the relevant time-frame and means at their disposal. This is now to be done in a language ‘they understand or are reasonably supposed to understand’ rather than a language they ‘may reasonably be supposed to understand’.116 Applicants are also to receive the services of an 111 Recast Asylum Procedures Directive, Article 9(3). 112 Garlick (n 64) 230. 113 Asylum Procedures Directive, Article 8(2); Recast Asylum Procedures Directive, Article 10(3). 114 Recast Asylum Procedures Directive, Article 10(3)(d). 115 Asylum Procedures Directive, Article 10; Recast Asylum Procedures Directive, Article 12. 116 Asylum Procedures Directive, Article 10(1)(a); Recast Asylum Procedures Directive, Article 12(1)(a).

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interpreter for submitting their case to the competent authorities whenever necessary.117 Applicants must not be denied the opportunity to communicate with unhcr.118 The Asylum Procedures Directive prevented applicants being denied communication ‘with any other organisation working on behalf of the unhcr in the territory of the Member State pursuant to an agreement with that Member State’.119 The Recast Asylum Procedures Directive extends this to ensure applicants have the opportunity to communicate with ‘any other organisation providing legal advice or other counselling to applicants in accordance with the law of the Member State concerned’.120 Finally, Article 12(1)(d) of the Recast Asylum Procedures Directive adds the requirement that applicants and, if applicable, their legal advisers or other counsellors, shall have access to the country of origin information and to the information provided by experts given to the determining authority, where the determining authority has taken that information into consideration for the purpose of taking a decision on their application. All in all, while there are some minor improvements in the Recast over the original Asylum Procedures Directive, the major contributions of the Recast lie elsewhere. 4.5 Obligations of the Applicants The Recast Asylum Procedures Directive now requires that Member States oblige the applicant to cooperate with the authorities,121 whereas this was ­previously optional.122 These obligations may include the requirement to report to the competent authorities or appear in person, either without delay or at a specified time; to hand over relevant documents in their possession; and to provide information regarding their current place of residence and keep the authorities up to date with any changes in that matter.123 Member States may also require applicants to have their photograph taken by the competent 117 Asylum Procedures Directive, Article 10(1)(b); Recast Asylum Procedures Directive, Article 12(1)(b). 118 Asylum Procedures Directive, Article 10(1)(c); Recast Asylum Procedures Directive, Article 12(1)(c). 119 Asylum Procedures Directive, Article 10(1)(c). 120 Recast Asylum Procedures Directive, Article 12(1)(c). 121 Recast Asylum Procedures Directive, Article 13(1). 122 Asylum Procedures Directive, Article 11(1). 123 Asylum Procedures Directive, Article 11(2); Recast Asylum Procedures Directive, Article 13(2).

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authorities and that the applicant’s oral statements are recorded provided he or she has been previously informed thereof. Member States may also make provision for the authorities to search the applicant and the items carried with them.124 The Recast adds the requirement that the search must be carried out by a person of the same sex with full respect for the principles of human dignity and physical and psychological integrity.125 This is typical of its approach to vulnerability: the power to search is not itself significantly constrained by clear rules at eu level. Rather, basic human rights values are reiterated (and would apply even if not stated), with a concession to ‘vulnerability’ in the express requirement of the same sex of the person carrying out the search. This is a welcome addition yet by confirming the right to search it may lend itself to legitimating searches more rather than less. 4.5.1 The Personal Interview An applicant will usually be given the opportunity of a personal interview before a decision is taken on their application.126 The Recast states that the interview ought to be given by the personnel of the determining authority, unless a ‘large number’ of simultaneous applications make this impossible in practice. If so, the interview may be carried out by personnel of another authority, so long as they have received the relevant training.127 This might become relevant in future joint processing pilots run by easo discussed above in Section  4.1.4. Personal interviews have been excluded until this point to ‘avoid political, legal, linguistic and financial questions in relation to further joint action on analysis of cases, and/or making recommendations or taking legally binding decisions’.128 Although ‘personnel of another authority’ remains unspecified, as a matter of eu law, there would seem to be no impediment to some involvement from officials of other Member States. National law, in contrast, might well limit such activities. It has been noted that Member States are still reluctant to grant authority to external personnel on the grounds it ‘could undermine in some way national control over processes, or parts of processes, 124 Asylum Procedures Directive, Article 11(2)(d); Recast Asylum Procedures Directive, Article 13(2)(d). 125 Recast Asylum Procedures Directive, Article 13(2)(d). 126 Asylum Procedures Directive Article 12(1); Recast Asylum Procedures Directive Article 14(1). 127 Recast Asylum Procedures Directive, Article 14(1) second subpara. 128 E. Guild, C. Costello, M. Garlick, V. Moreno-Lax and M. Mouzourakis, ‘New Approaches, Alternative Avenues and Means of Access to Asylum Procedures for Persons Seeking International Protection’ (2015) ceps Papers in Liberty and Security in Europe No. 77, 28.

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that can lead to granting the right to enter and remain in their territory’ see it as ‘constituting a potential encroachment on Member States’ sovereignty’.129 The Recast significantly reduces the circumstances in which a personal interview may be omitted. It may be omitted in cases where the determining authority can grant refugee status on the basis of evidence available.130 This could facilitate the front-loading of administrative resources. It may also be omitted if the applicant is deemed unfit or unable to be interviewed owing to enduring circumstances beyond his or her control.131 Under the Asylum Procedures Directive an interview could be omitted, where the competent authority had already had a meeting with the applicant for the purpose of assistance with the application and submission of any essential information regarding the application132 or if a complete examination of the information provided by the applicant, led to the conclusion the application was unfounded.133 These sweeping exceptions were one of the worst features of the original Asylum Procedures Directive, so the Recast is a clear improvement in this respect. The recast strengthens some of the requirements in the Asylum Procedures Directive. Member States are to ‘ensure that the person who conducts the interview is competent to take account of the personal and general circumstances surrounding the application, including the applicant’s cultural origin, gender, sexual orientation, gender identity or vulnerability’.134 This contrasts with the weaker analogous provision in the Asylum Procedures Directive that the person conducting the interview must be ‘sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so’.135 The cjeu has ruled on the practical application of the original Asylum Procedures Directive provision in relation to asylum claims where persecution due to the applicant’s sexuality is alleged. First, it held that while questions based on stereotyped notions of homosexuality may be useful, ‘the assessment of applications for the grant of refugee status on the basis solely of stereotyped notions associated with homosexuals’ would not satisfy the provision.136 Furthermore, it would breach this requirement if an applicant was not 129 130 131 132 133 134 135 136

Ibid 28. Recast Asylum Procedures Directive, Article 14(2)(a). Recast Asylum Procedures Directive, Article 14(2). Asylum Procedures Directive, Article 12(2)(b). Asylum Procedures Directive, Article 12(2)(c). Recast Asylum Procedures Directive, Article 15(3)(a). Asylum Procedures Directive, Article 13(3)(a). Joined Cases C-148/13, C-149/13 and C-150/13 A, B and C (cjeu, 2 December 2014), para 62.

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considered credible on the grounds he did not reveal his sexual orientation at the first possible opportunity.137 The Recast Asylum Procedures Directive also introduces a number of additional requirements for personal interviews.138 The interview, wherever possible, ought to be conducted by a person of the same sex where the applicant so requests, unless the determining authority considers the request unrelated to difficulties the applicant might have presenting the grounds of their application in a comprehensive manner.139 The interviewer is also not to wear a military or law enforcement uniform.140 The interpreter must be able to ensure appropriate communication between the applicant and the person who conducts the interview. Communication shall take place in the language preferred by the applicant unless there is another language which he or she understands and in which he or she is able to communicate clearly.141 When conducting a personal interview, the Recast Asylum Procedures Directive requires the determining authority to ensure the applicant is given an adequate opportunity to present the elements needed to substantiate their application.142 This includes the opportunity to give an explanation regarding elements which may be missing and/or any inconsistencies or contradictions in the applicant’s statements. This again is a significant improvement over the original Asylum Procedures Directive, which allowed contradictory statements to be a ground for deeming claims unfounded, and in turn dispensed with the interview on this basis.143 In the recent case of A, B and C,144 Advocate General Sharpston deplored the absence of any guarantee in the original Asylum Procedures Directive on giving notice to an applicant when their credibility is in doubt before a negative decision on their claim is taken,145 and found it necessary under the principle of good administration to ensure that applicants have the opportunity to

137 138 139 140 141 142 143

Ibid para 71. Recast Asylum Procedures Directive, Article 15. Recast Asylum Procedures Directive, Article 15(3)(b). Recast Asylum Procedures Directive, Article 15(3)(d). Recast Asylum Procedures Directive, Article 15(3)(c). Recast Asylum Procedures Directive, Article 16. Asylum Procedures Directive, Article 12(2)(c). Under Asylum Procedures Directive, Article 23(4)(g) an application could be considered unfounded where the applicant made ‘inconsistent, contradictory, improbable or insufficient representations’ making their claim ‘clearly unconvincing’. 144 A, B and C (n 136). 145 Ibid Opinion of ag Sharpston, paras 76–77.

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address questions regarding their credibility.146 The cjeu did not comment explicitly on this issue focussing instead on requirements of the determining authority behave in a manner sensitive to the applicants circumstances including their cultural origin or vulnerability.147 4.5.2 Interview Reports and Recordings The Recast Asylum Procedures Directive also introduces more extensive requirements to record interviews. The Asylum Procedures Directive required that a written report contained ‘at least the essential information’ presented,148 while the Recast requires that there is a ‘thorough and factual report containing all substantive elements or a transcript’ of the interview.149 The Recast Asylum Procedures Directive allows for an audio or audio-visual recording of the interview and for this recording, or a transcript thereof, to be made available in connection with the applicant’s file.150 Under the Asylum Procedures Directive, Member States could request the applicant’s approval of the contents of the report for the personal interview and were to enter the reasons for any refusal to approve into the applicants file.151 The Recast Asylum Procedures Directive also makes provision for the applicant to comment on their interview. Member States must now ensure that the applicant has the opportunity to make comments and/or provide clarification orally and/or in writing with regard to any mistranslations or misconceptions appearing in the report or in the transcript, at the end of the personal interview or within a specified time limit before the determining authority takes a decision. In order to do this, Member States must ensure that the applicant is fully informed of the content of the report or of the substantive elements of the transcript, with the assistance of an interpreter if necessary. Member States shall then request the applicant to confirm that the content of the report or the transcript correctly reflects the interview. This latter part may not be necessary where there is a recording of the interview. Further, where Member States ­provide for both a transcript and a recording of the personal interview, Member States need not allow the applicant to make comments on and/or provide clarification of the transcript.152 146 147 148 149 150 151 152

Ibid Opinion of ag Sharpston, paras 78–79. Ibid paras 62 and 71. Asylum Procedures Directive, Article 14(1). Recast Asylum Procedures Directive Article 17(1). Recast Asylum Procedures Directive, Article 17(2). Asylum Procedures Directive, Article 14(3). Recast Asylum Procedures Directive, Article 17(3).

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Article 17(5) of the Recast Asylum Procedures Directive also includes the requirement that applicants and their legal advisers or other counsellors have access to the report or the transcript and, where applicable, the recording, before the determining authority takes a decision. 4.5.3 Consequences of Failure to Appear for Interview If an applicant fails to attend a personal interview the determining authority is still to take a decision.153 While absence ought not to adversely affect the decision of the determining authority,154 Member States may take into account the fact that the applicant failed to appear for the personal interview, unless he or she had good reasons for the failure to appear.155 This strikes an ambivalent chord, and implicitly, some negative inferences may be drawn from failure to attend. However, the reality of reception conditions and lack of early advice in Member States are such that, as Garlick notes, there are many reasons why an applicant for protection ‘who may be unaccustomed to formal legal processes, living under difficult circumstances notwithstanding being entitled to reception conditions – may fail to attend an interview’.156 As discussed further below, failure to appear may ultimately lead to an application being deemed withdrawn ‘unless the applicant demonstrates within a reasonable time that his or her failure was due to circumstances beyond his or her control’.157 4.6 Medical Examination Article 18 of the Recast Asylum Procedures Directive introduces the requirement, when relevant, to arrange or fund a medical examination of the applicant in case of signs that might indicate past persecution or serious harm. All medical examinations are to be carried out by qualified medical professionals, although Member States may designate particular medical professionals who are to carry out these examinations. The result should be submitted to the determining authority as soon as possible. If medical examination is not deemed relevant, Member States are to inform applicants that they may, on their own initiative and at their own cost, arrange for a medical examination concerning signs that might indicate past persecution or serious harm.158 In 153 154 155 156 157 158

Recast Asylum Procedures Directive, Article 14(3). Recast Asylum Procedures Directive, Article 14(4). Recast Asylum Procedures Directive, Article 14(5). Garlick (n 64) 236. Recast Asylum Procedures Directive, Article 28(1)(a). Recast Asylum Procedures Directive, Article 18(2).

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either situation, the results of medical examinations are to be assessed by the determining authority along with the other elements of the application.159 4.7 Legal Support A separate contribution by Barbara Mikolajczyk in this collection deals with the issue of legal support in detail. Accordingly, in this section, we only provide a brief overview. As Peers notes above, the legal aid provisions of the recast are complex, yet contain ‘no improvement at all… (quite the reverse)’.160 Most asylum-seekers need advice and support about how to navigate the asylum process. The role of legal advice in particular is crucial: there is growing evidence that early legal advice is not only of great benefit to asylum-seekers, but also assists front-loading and efficient determination of claims.161 For example, a front-loading Pilot conducted in 2007–2008 by unhcr in the context of its Quality Initiative Project in the uk provides an example of the value of front-loading in the asylum process, in particular of early provision of legal advice as helping decision-makers by ensuring more evidence was made available to decision-makers at the first instance decision.162 Legal aid has more recently come to the attention of the ECtHR which has emphasized its importance, noting how legal assistance and interpretation are necessary to ensure proceedings are conducted in the proper way.163 In mss v Belgium and Greece, it placed ‘lack of legal aid’ among several problematic ­elements to be remedied in accessing asylum procedures.164 According to the ECtHR, legal aid ought to offer a ‘real and adequate opportunity’ to individual applicants to advance their claims.165 At first instance, the original Asylum Procedures Directive provided for access to legal assistance, but at the applicant’s own cost:

159 Article 18(3). 160 Peers (n 40) 15. 161 B. Anderson and S. Conlan, ‘Providing Protection – Access to Early Legal Advice for Asylum Seekers’ (2014) August 2014 accessed 25 January 2015. 162 unhcr, Quality Initiative Project: Sixth Report to the Minister, April 2009, 3 accessed 25 January 2015. 163 im v France (n 29), paras 145, 151 and 155. See also Asylum Procedures Directive, Article 12(1)(a)(b) on interpretation and accessibility of information. Cf., Asylum Procedures Directive, Article 20ff, limiting access to free legal assistance and representation to appeal proceedings. 164 mss v Belgium and Greece Appl no 30696/09 (ECtHR, 21 January 2011), para 301. 165 Ibid para 313.

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Member States shall allow applicants for asylum the opportunity, at their own cost, to consult in an effective manner a legal adviser or other counsellor, admitted or permitted as such under national law, on matters relating to their asylum applications.166 The recast clarifies that the right to access legal assistance at the applicant’s own cost covers ‘all stages of the procedure, including following a negative decision’.167 Article 20(2) also makes it optional for Member States to provide free legal assistance and representation at first instance should they wish. The Recast Asylum Procedures Directive introduced the requirement that Member States upon request, provide applicants at first instance with legal and procedural information free of charge.168 Recital 22 of the Preamble to the Recast Asylum Procedures Directive notes the interest in ensuring correct recognition of international protection at first instance and how the provision of information should help applicants better understand the procedure and thus comply with the relevant obligations. This should include, at least, information on the procedure in the light of the applicant’s particular circumstances. This again fits the aim of front-loading by improving the quality of first instance decisions. Should the application be rejected at first instance, Member States are also to provide, on request, information clarifying the reasons for such decision and explaining how it can be challenged. It remains unchanged that the applicant is entitled to free legal assistance and representation only on appeal. The original Asylum Procedures Directive allowed Member States to deny legal aid unless the appeal or review was likely to succeed.169 The recast, however, shifts the burden of proof and requires that a court or tribunal declare the appeal to ‘have no tangible prospect of success’.170 Following the recast, this may be applied to unaccompanied minors only where their representatives are legally qualified according to the law of that country.171 Member States retain the possibility under the recast to place a number of conditions on the provision of legal and procedural information at first instance and on the provision of legal assistance and representation on appeal. As under the Asylum Procedures Directive,172 Member States can 166 167 168 169 170 171 172

Asylum Procedures Directive, Article 15(1). Recast Asylum Procedures Directive, Article 22(1). Recast Asylum Procedures Directive, Article 19. Asylum Procedures Directive, Article 15(3)(d). Recast Asylum Procedures Directive, Article 20(3). Recast Asylum Procedures Directive, Article 25(6)(d). Asylum Procedures Directive, Article 15(3)(a),(b),(c).

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restrict legal aid to those who lack sufficient resources; to services provided by advisers designated by national law; and for appeals procedures under the directive rather than any further appeals or reviews.173 This would seem to comply with an earlier cjeu decision in deb where it was held that Article 47 eu Charter of Fundamental Rights might require the granting of legal aid if it was necessary to be able to rely on that principle.174 As under the Asylum Procedures Directive,175 Member States still retain the right to impose monetary or time limits and prevent fees and costs being more favourable than those accorded to their own nationals.176 Both Directives also make provision for repayment should the applicant’s situation improve or if an earlier decision on legal aid was made on the basis of false information.177 The basic approach under the recast is legal information at first instance, and legal aid for legal advice and representation only at the appeal stage. Legal representation differs considerably from legal information. However detailed and precise, information about the asylum process does not amount to the assistance provided by a qualified legal advisor enabling the asylum-seeker to support her particular case throughout the different stages of the application. Accordingly, it is regrettable that the Recast Asylum Procedures Directive opts for free legal and procedural information rather than, as the Commission had proposed, free legal representation.178 However, this does not rule out innovative methods to deliver cost-effective legal representation at the outset of the asylum procedure, via legal ngos and other qualified organizations. 4.8 Time Limits Applications should be processed as soon as possible after an adequate and complete examination.179 A number of time limits have been added to the recast. Article 31(3) introduces a time limit of six months from the lodging of the application for the conclusion of the examination procedure. There are a limited number of exceptions allowing Member States to postpone examination or extend the time limit, however this is all subject to an overall time limit of 21 months from the lodging of the application.180 173 174 175 176 177 178 179 180

Recast Asylum Procedures Directive, Article 21(2). Case C-279/09 deb [2010] ecr I-13849, para 59. Asylum Procedures Directive, Article 15(5). Recast Asylum Procedures Directive, Article 21(4). Asylum Procedures Directive, Article 15(6); Recast Asylum Procedures Directive, Article 21(6). European Commission (n 18) 39. Asylum Procedures Directive, Article 23(2); Recast Asylum Procedures Directive, Article 31(2). Recast Asylum Procedures Directive, Article 31(5).

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The six month time limit may be extended for up to nine further months in limited circumstances, namely where complex issues of fact or law are involved; where there is a large number of simultaneous applications; or where the delay is clearly attributable to applicant’s failure to comply with their obligations. In ‘duly justified circumstances’, Member States may take a further three months if this is necessary to ensure an adequate and complete examination of the application for international protection. The breadth of this exception suggests extension could easily become the norm. If a Member State cannot take a decision within six months, the applicant must either be informed of the delay or given, upon request, information about the time-frame within which the decision is to be expected.181 The Recast no longer includes the proviso that such information does not obligate the Member State to take a decision within that time-frame. The Recast Asylum Procedures Directive introduces the possibility for Member States to postpone the examination procedure where ‘the situation in the country of origin is uncertain, so long as this is expected to be temporary’.182 In such a case, Member States are to review the situation at least every six months; inform the applicants concerned within a reasonable time of the reasons for the postponement; and inform the Commission within a reasonable time of the postponement of procedures for that country of origin.183 Again, it seems entirely likely that the situation in asylum-seekers’ countries of origin may often be ‘uncertain’ or in flux. That this should prevent swift decisionmaking again runs counter to the objective of front-loading and the desirability of recognizing strong claims quickly.184 4.9 The Decision Notice of the decision on an application ought to be given within a reasonable time of the decision by the determining authority.185 Applicants are to be informed not just of the result of the decision but also given information about 181 Asylum Procedures Directive, Article 23(2); Recast Asylum Procedures Directive, Article 31(6). 182 Recast Asylum Procedures Directive, Article 31(4). 183 Recast Asylum Procedures Directive, Article 31(4). 184 ecre points out that any postponement of the examination should be constrained by the eu general principle of good administration. ecre, Information Note on 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) (2014) December 2014, 35. 185 Asylum Procedures Directive, Article 10(1)(d); Recast Asylum Procedures Directive, Article 12(1)(e).

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how to challenge a negative decision by the determining authority.186 This must be in a language ‘they understand or are reasonably supposed to understand’.187 4.10 Prioritized Applications According to Recital 19 of the Preamble of the Recast Asylum Procedures Directive, Member States ought to have the flexibility to shorten the overall duration of the procedure, prioritizing certain applications. Member States are able to prioritize an examination ‘in particular’ if the application is likely to be well-founded or if the applicant is ‘vulnerable’ according to the Reception Conditions Directive or ‘in need of special procedural guarantees’.188 In particular, the latter situation is said to apply to unaccompanied minors. This provision reflects a welcome attempt to ensure that strong claims are recognized quickly. The elements of a prioritized procedure remain undefined, though it could entail no interview if the determining authority is able to grant refugee status on the basis of evidence available and the provisions of Article 14(2)(a), as discussed above, are utilised. 4.11 Accelerated Procedures – Ten Grounds There are ten grounds for acceleration listed in the Recast Asylum Procedures Directive. These are where: (a) the applicant, in submitting his or her application and presenting the facts, has only raised issues that are not relevant to the examination of whether he or she qualifies as a beneficiary of international protection by virtue of [the Recast Qualification Directive]; or (b) the applicant is from a safe country of origin within the meaning of this Directive; or (c) the applicant has misled the authorities by presenting false information or documents or by withholding relevant information or documents with respect to his or her identity and/or nationality that could have had a negative impact on the decision; or (d) it is likely that, in bad faith, the applicant has destroyed or disposed of an identity or travel document that would have helped establish his or her identity or nationality; or 186 Asylum Procedures Directive, Article 10(1)(e); Recast Asylum Procedures Directive, Article 12(1)(f). 187 Recast Asylum Procedures Directive, Article 12(1)(f). 188 Recast Asylum Procedures Directive, Article 31(7).

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(e) the applicant has made clearly inconsistent and contradictory, clearly false or obviously improbable representations which contradict sufficiently verified country-of-origin information, thus making his or her claim clearly unconvincing in relation to whether he or she qualifies as a beneficiary of international protection by virtue of [the Recast Qualification Directive]; or (f) the applicant has introduced a subsequent application for international protection that is not inadmissible…; or (g) the applicant is making an application merely in order to delay or frustrate the enforcement of an earlier or imminent decision which would result in his or her removal; or (h) the applicant entered the territory of the Member State unlawfully or prolonged his or her stay unlawfully and, without good reason, has either not presented himself or herself to the authorities or not made an application for international protection as soon as possible, given the circumstances of his or her entry; or (i) the applicant refuses to comply with an obligation to have his or her fingerprints taken in accordance with [the Eurodac Regulation];189 or (j) the applicant may, for serious reasons, be considered a danger to the national security or public order of the Member State, or the applicant has been forcibly expelled for serious reasons of public security or public order under national law.190 We will now discuss the grounds for acceleration in more detail. Given the complexity of the safe country of origin notion, the second ground for acceleration,191 it is analysed separately below. Several grounds for acceleration increase procedural safeguards compared to their counterparts in the Asylum Procedures Directive. The first ground listed covers applications not raising any new elements.192 The Asylum Procedures 189 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 oj L 180/1, 29 June 2013. 190 Recast Asylum Procedures Directive, Article 31(8). 191 Recast Asylum Procedures Directive Article 31(8)(b). 192 Asylum Procedures Directive, Article 23(4)(h); Recast Asylum Procedures Directive Article 31(8)(a).

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Directive equivalent was broader, allowing for accelerated procedures where the applicant only raised issues that were ‘not relevant or of minimal relevance’.193 The fifth ground, regarding ‘clearly inconsistent and contradictory, clearly false or obviously improbable representations’194 also slightly strengthens its Asylum Procedures Directive predecessor195 given the requirement for sufficiently verified country of origin information before such a decision can be made. Other grounds for acceleration reflect elements that determined by the asylum-seeker’s entrance into the Member State. Most asylum-seekers in the eu are irregular entrants.196 In this context, it must be recalled under Article 31 of the Geneva Convention, States commit not to: [I]mpose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened…, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. The Recast Asylum Procedures Directive provisions on acceleration aim to reflect Article 31 of the Geneva Convention, but seem to do so in a manner contrary to its non-punitive ethos. For instance, the third and fourth grounds for acceleration deal with situations where the applicant tries to avoid his or her identity being discovered either by misleading the authorities through the use of false documents, failing to disclose particular documents,197 or seemingly destroying, in bad faith, identity or travel documents.198 Recital 21 of the Preamble does state that where an applicant can show good cause, the lack of documents on entry or the use of forged documents should not per se entail an automatic recourse to accelerated procedures. Yet it is regrettable that in Qurbani199 the cjeu declined the opportunity to engage with Article 31 of the Geneva Convention, on the basis that it lacks jurisdiction to interpret this 193 Asylum Procedures Directive, Article 23(4)(a). 194 Asylum Procedures Directive Article 23(4)(g); Recast Asylum Procedures Directive, Article 31(8)(e). 195 Asylum Procedures Directive Article 23(4)(g). 196 Hein and Damato estimate 90% of asylum-seekers to enter the eu irregularly: Hein and Damato (n 46) 17. 197 Asylum Procedures Directive, Article 23(4)(d); Recast Asylum Procedures Directive, Article 31(8)(c). 198 Recast Asylum Procedures Directive, Article 31(8)(d). 199 Case C-481/13 Qurbani [2014] oj C 315/24.

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provision of international law due to it not been referred to directly in eu ­legislation. However, various provisions of the Schengen Borders Code do refer to the right to seek asylum.200 Under these circumstances, an argument that an interpretation of Article 31 of the Geneva Convention should have been forthcoming. A number of the grounds reflect the stereotype of the abusive applicant. For instance, the seventh ground provides for acceleration where the applicant is merely applying to delay or frustrate the enforcement of an earlier or imminent decision resulting in their removal.201 Similarly, procedures can be accelerated where a migrant with irregular status, without good reason, does not present themselves to the authorities or apply for asylum as soon as possible.202 This was recognized as a permissible ground for applying a fast-track procedure in me v France.203 In that case, me had delayed making his asylum application for several years and the ECtHR did not accept that this was due to ignorance of the asylum system.204 The Court accepted that the time limits under the accelerated procedure were very short, but noted that me had already had three years within which to lodge his claim and benefit from the full procedure.205 In contrast, and more typically, im v France and ac v Spain cast doubts on any accelerated procedure which fails to permit sufficient time to prepare an application properly.206 In both these cases, the abuser is evoked, using procedures to prevent the effectuation of removal or failing to claim asylum when they allegedly ought to have known better. The ninth ground for acceleration covers the situation where the applicant refuses to be fingerprinted,207 now in accordance with the requirements in the Recast Eurodac Regulation. As we know, refusing to be fingerprinted, including taking more extreme self-mutilation measures such as burning off ones

200 Regulation (ec) No. 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders oj L 105/1, 13 April 2006 (Schengen Borders Code), Articles 3 and 13. 201 Asylum Procedures Directive, Article 23(4)(j), Recast Asylum Procedures Directive, Article 31(8)(g). 202 Asylum Procedures Directive, Article 23(4)(l); Recast Asylum Procedures Directive, Article 31(8)(h). 203 me v France (n 29), para 66. 204 Ibid para 68. 205 Ibid para 68. 206 im v France (n 29), para 147; ac v Spain (n 29), para 100. 207 Asylum Procedures Directive, Article 23(4)(n); Recast Asylum Procedures Directive, Article 31(8)(i).

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fingertips, is a strategy used to avoid Dublin deportations,208 and secure access to asylum in countries with suitable reception conditions and well-functioning asylum system.209 Applying accelerated procedures to those who refuse to be fingerprinted reflects the punitive character of accelerated procedures. For instance, in France, the Conseil d’Etat ruled that if damage done to fingerprints means they cannot be recorded after several attempts, ‘this constitutes conclusive evidence that the asylum-seeker is not meeting his/her obligation to cooperate and submit their identity to the Eurodac system and accordingly such applicants have no right to accommodation’.210 The tenth ground for acceleration is where the applicant is a danger to the national security or public order of the Member State, or has been forcibly expelled for serious reasons of public security or public order under national law.211 According to the Preamble, this may cover a conviction for committing a serious crime.212 If such matters arise, it may well be that exclusion from rs will be part of the analysis. Given the complexity of the law on exclusion, and the important eu principles which now surround it,213 accelerated procedures may not be appropriate here. The original Asylum Procedures Directive contained further grounds for accelerating procedures than are contain in the Recast. These were where the applicant clearly did not qualify as a refugee or for refugee;214 where the applicant had filed another application for asylum with different personal data;215 where the applicant did not make the application earlier, having had 208 C. Jones, ‘Analysis: 11 Years of Eurodac’, Statewatch (January 2014) 5. 209 In 2014, for instance, many asylum-seekers entering through Italy declined to be fingerprinted, while Italy did not have the legal or practical means to compel them to provide them involuntarily. See Italian Refugee Council, aida Country Report: Italy (ecre 2014) 26–27 accessed 25 January 2015. 210 Conseil d’Etat, section du contentieux, juge des référés, Case No. 332890 Minister of Immigration, Integration, National Identity and Supportive Development v Mrs Selamawit, 2 November 2009 referred to in ecre, Dublin II Regulation: Lives on Hold, European Comparative Report, February 2013, 13. 211 Asylum Procedures Directive, Article 23(4)(m); Recast Asylum Procedures Directive, Article 31(8)(j). 212 Recast Asylum Procedures Directive, Preamble, Recital 24. 213 In Joined Cases C-57/09 and C-101/09, B and D v Germany [2010] ecr I-10979, para 99, the cjeu states that exclusion must stem from ‘an assessment on a case-by-case basis of the specific facts…’ 214 Asylum Procedures Directive, Article 23(4)(b). 215 Asylum Procedures Directive, Article 23(4)(e).

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opportunity to do so and without reasonable cause;216 where the applicant did not comply with the obligations to provide information and documentation;217 or to report to the authorities without good reason;218 and where the application was made by an unmarried minor after their parents’ application has been rejected and without raising any new relevant new elements.219 Where there was a safe third country for the applicant it was also grounds for an accelerated procedure,220 whereas it is now grounds for not examining the application under Article 38 of the Recast Asylum Procedures Directive. These grounds for acceleration are exhaustive. The grounds for acceleration in the original Asylum Procedures Directive were interpreted by the cjeu in hid as indicative and non-exhaustive.221 Peers notes that the Recast Asylum Procedures Directive leaves ‘the important question of whether the list of accelerated proceedings is exhaustive or not…not clearly answered’.222 We share the interpretation proposed by Garlick, that the list is better regarded as exhaustive.223 Article 31(8) of the Recast Asylum Procedures Directive states that ‘Member States may provide that an examination procedure in accordance with the basic principles and guarantees of Chapter II be accelerated and/or conducted at the border or in transit zones in accordance with Article 43 if ’ one of ten grounds are satisfied. The original Asylum Procedures Directive, on the other hand, stated that ‘Member States may prioritise or accelerate any examination…including where the application is likely to be well-founded or where the applicant has special needs’ and then that ‘Member States may also

216 Asylum Procedures Directive, Article 23(4)(i). 2004 Qualification Directive, Article 4(1) and (2): ‘1. Member States may consider it the duty of the applicant to submit as soon as possible all elements needed to substantiate the application for international protection. In cooperation with the applicant it is the duty of the Member State to assess the relevant elements of the application. 2. The elements referred to in of paragraph 1 consist of the applicant’s statements and all documentation at the applicants disposal regarding the applicant’s age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection’. 217 Asylum Procedures Directive Article 23(4)(f). 218 Asylum Procedures Directive Article 23(4)(k). 219 Asylum Procedures Directive Article 23(4)(o). 220 Asylum Procedures Directive Article 23(4)(c)(ii). 221 hid (n 27), para 70. 222 Peers (n 40) 15. 223 Garlick (n 64) 241.

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provide that an examination procedure…be prioritised or accelerated if’ one of a number of grounds was met.224 Accelerated procedures may, following the recast, only be applied to unaccompanied minors in specific circumstances. These are: when the minor come from a country classified as a safe country of origin; when the application is an admissible subsequent application; when the minor may be considered a danger to national security or public order or when the applicant has been forcibly expelled for serious reasons of public security or public order.225 The nature of an accelerated procedure is left to the discretion of the Member States, however the basic principles and guarantees set out above must be respected and there must be ‘reasonable’ time limits.226 Recital 20 of the Preamble reiterated that an accelerated procedure should be ‘without prejudice to an adequate and complete examination being carried out’. The cjeu has also noted that the accelerated procedure must not deprive applicants of the guarantees applying to all forms of procedure and or of their rights under the Asylum Procedures Directive.227 In particular, the applicants must enjoy a sufficient period of time within which to gather and present the necessary material in support of their application, thus allowing the determining authority to carry out a fair and comprehensive examination of those applications and to ensure that the applicants are not exposed to any dangers in their country of origin.228 Accelerated procedures are not to be applied to applicants in need of special procedural guarantees if adequate support cannot be provided.229 The fact that vulnerable persons are deemed insufficiently robust to put their claims in the accelerated context, is presumably the assumption. However, for all asylum-seekers, gathering information and recuperating from traumatic journeys may make accelerated procedures unsuitable. 4.11.1 Safe Country of Origin – From Unfounded to Accelerated As mentioned, the final category of accelerated procedures is related to safe country of origin.230 Under the original Asylum Procedures Directive, a safe country of origin was a ground for considering an application unfounded.231 224 225 226 227 228 229 230 231

Asylum Procedures Directive, Article 23(3) and (4). Recast Asylum Procedures Directive, Article 25(6)(a). Recast Asylum Procedures Directive, Article 31(9). hid (n 27), para 74. Ibid para 75. Recast Asylum Procedures Directive, Article 24(3). Recast Asylum Procedures Directive, Article 31(8)(b). Asylum Procedures Directive, Article 31(2).

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This is no longer so and the Recast merely permits the safe country of origin to be used as a basis for accelerated procedures. The country of origin of the applicant was accepted by the cjeu in hid as a permissible ground for accelerating procedures232 so long as procedures allowed for the applicant to gather supporting materials and for the determining authority to carry out a fair and comprehensive examination to ensure that applicants are not exposed to any dangers in their country of origin.233 Disappointingly, the cjeu failed to establish limits on when nationality might be used to siphon applicants into different procedures. A safe country of origin is defined in Articles 36 and 37 of the Recast Asylum Procedures Directive. A third country may be considered a safe country of origin if the applicant has the nationality of that country or is a stateless person formerly habitually resident in that country. This is so long as the applicant: [H]as not submitted any serious grounds for considering the country not to be a safe country of origin in his or her particular circumstances and in terms of his or her qualification as a beneficiary of international protection in accordance with [the Recast Qualification Directive].234 Recital 42 of the Preamble to the recast recognizes that the designation of a third country as a safe country of origin cannot establish an absolute guarantee of safety for nationals of that country. Instead, the assessment underlying the designation can only take into account the general civil, legal and political ­circumstances in that country and whether actors of persecution, torture or inhuman or degrading treatment or punishment are subject to sanction in practice when found liable in that country. For this reason, the importance of not applying the concept once an applicant shows that there are valid reasons to consider the country not to be safe in their particular circumstances is noted. The Recast Asylum Procedures Directive no longer contemplates a common list of safe countries of origin.235 A country is instead considered as a safe country of origin where the legal situation, the application of the law within a democratic system and the general political circumstances, demonstrate that there is generally and consistently no persecution, no torture or inhuman or degrading treatment, or punishment and no threat of indiscriminate violence 232 233 234 235

hid (n 27), para 73. Ibid para 75. Recast Asylum Procedures Directive, Article 36(1). Like the common list for ‘super safe third countries’, the cjeu annulled the procedure for agreeing this list. See 4.2.3 above.

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due to an international or internal armed conflict. This assessment shall take account of the relevant laws and regulations of the country and their application; whether the rights and freedoms in the echr, the International Covenant for Civil and Political Rights (iccpr) or the Convention against Torture (cat) are respected, particularly those rights in the echr which cannot be derogated from; respect for the principle of non-refoulement; and a system of effective remedies against violations of these rights and freedoms.236 In determining this, reference is to be had to a range of sources including other Member States, easo, unhcr, the Council of Europe and other relevant international organizations. The Asylum Procedures Directive allowed for derogation from the minimum guarantees of what constitutes a safe third country in the case of existing national legislation.237 This was so long as the Member State was satisfied that persons (or that specified group) in the third countries concerned were generally neither subject to persecution or torture or inhuman or degrading treatment or punishment. The Recast Asylum Procedures Directive does not allow for such derogation. We have a useful snapshot of contemporary safe country of origin practice in ecre’s latest Asylum Information Database (aida) report.238 It illustrates that some States use the safe country of origin to place a greater burden of proof on applicants and procedural disadvantages.239 For instance in Belgium, the applicant’s fear of persecution must ‘appear clearly’ from their declarations.240 Belgium also utilised a restricted appeal procedure for applicants from a safe country of origin as discussed below in Part 4.15.1. The fact that safe country of origin only triggers an accelerated procedure under the Recast Asylum Procedures Directive may cast doubt on the validity of these practices. Only two countries, namely Sweden and Italy, have not introduced any safe country concepts and do not apply these concepts in practice.241 All other Member States have introduced legislation either for the safe country of origin concept or for both the safe country of origin concept and the safe third country concept.242 The Netherlands has introduced a third concept of ‘country of 236 Asylum Procedures Directive, Annex ii; Recast Asylum Procedures Directive, Annex i. 237 Asylum Procedures Directive, Article 30(2). 238 ecre, Mind the Gap: An ngo Perspective on Challenges to Accessing Protection in the Common European Asylum System – Second aida Annual Report (Brussels 2014). 239 Ibid 48. 240 Ibid 50. 241 Ibid 49. 242 Ibid 49.

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earlier residence’. This is supposed to provide protection from refoulement but only requires that the applicant has lived there for two weeks. ecre doubts whether it can be considered ‘reasonable’ as required by Recital 44 of the preamble of the Asylum Procedures Directive for applicants to be returned to a third country simply because they resided there for two weeks.243 The designation of countries as safe also varies across the 28 Member States. Bulgaria and Poland made the designation of a country as safe contingent on a minimum common list for the eu as foreseen by the Asylum Procedures Directive.244 ecre notes that such a list was never adopted due to a failure to reach agreement between the Member States.245 The inability to achieve common ground is still an issue and the survey demonstrates that not one country has been designated as safe by all Member States who have adopted lists.246 ecre considers that this difference raises ‘a number of fundamental questions as regards the utility of the concept and the use of national lists in the context of the ceas’.247 It further notes that the use of the safe country of origin concept seems to undermine rather than contribute to the objective of convergence of decision-making within the eu and is at odds with the aims of treating similar cases alike. Instead, the concept can lead to differences based upon the eu Member State in which the application is lodged.248 As discussed below in Section 4.15.2, the most problematic aspect of the Recast Asylum Procedures Directive is that the automatic suspensive effect of appeals does not apply in a straightforward way in safe country of origin cases.249 4.12 Unfounded Applications An application may be declared as unfounded once the determining authority has established that the applicant does not qualify for international protection.250 Garlick notes that it is unclear how the nature of unfounded applications means they differ from other categories of applications that ought to be rejected ‘nor how it can be determined if an applicant does not qualify for protection before a substantive procedure has been undertaken’.251 243 244 245 246 247 248 249 250

Ibid 49. Ibid 49. Ibid 49. Ibid 50. Ibid 53. Ibid 53. Recast Asylum Procedures Directive, Article 46(6)(a). Asylum Procedures Directive, Article 28 (1); Recast Asylum Procedures Directive, Article 32 (1). 251 Garlick (n 64) 259.

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Under the original Asylum Procedures Directive, unfounded and inadmissible applications were conflated, as were the grounds for acceleration and unfoundedness. Under the Recast, matters have been tightened up somewhat. The linkage between acceleration and unfoundedness is maintained in one important respect, however: where circumstances that would allow the Member State to apply an accelerated procedure exist Member States may also consider an application to be manifestly unfounded if it is defined in this way by national legislation.252 In light of this important proviso, it not apparent how an unfounded application differs from a rejected one. 4.13 Other Specific Procedures The Asylum Procedures Directive gave Member States the possibility of providing for two specific procedures derogating from the basic principles and guarantees normally granted to applicants. First, for a preliminary examination used to process subsequent applications and, secondly, for border procedures. Member States were also given the possibility to derogate under the safe third country concept.253 This exception has not been carried across into the Recast. 4.13.1 Border Procedures Under the Asylum Procedures Directive, Member States were permitted to introduce procedures, in accordance with the basic principles and guarantees of the Directive, for deciding on applications made at their border or transit zones.254 The Recast Asylum Procedures Directive alters the formulation somewhat, but confirms a wide discretion to use border procedures.255 The Recast Asylum Procedures Directive removes a derogation allowing Member States, where they had not provided for any border procedures, to maintain procedures derogating from the basic principles and guarantees in the Asylum Procedures Directive in order to decide at the border or in transit  zones whether applicants for asylum may enter their territory.256 These 252 Asylum Procedures Directive, Article 28(2); Recast Asylum Procedures Directive, Article 32(2). 253 Asylum Procedures Directive, Article 24. 254 Asylum Procedures Directive, Article 35(1). 255 Recast Asylum Procedures Directive, Article 43(1) states that Member States may provide for procedures at the border or transit zones for deciding on the admissibility of an applicant (pursuant to Article 33 i.e. whether there is a first country of asylum or a safe third country) or the substance of an application in a procedure where the circumstances exist for using an accelerated procedure. 256 Asylum Procedures Directive, Article 35(2).

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­ rocedures were to ensure, in particular, that the persons concerned could p remain at the border or transit zones of the Member State; were immediately informed of their rights and obligations; had access, if necessary, to the services of an interpreter; were given an interview by the competent authority; could consult a legal adviser; and could have a representative appointed in the case of unaccompanied minors.257 Under both the Asylum Procedures Directive and the Recast Asylum Procedures Directive, Member States must ensure that a border decision is taken within a reasonable time. When a decision has not been taken within four weeks, the applicant must be granted entry to the territory of the Member State in order for his or her application to be processed in accordance with the other provisions of the Directive. This requirement is relaxed in the event that a ‘large number’ of asylum-seekers at the border or in a transit zone make it impossible in practice to apply border procedures.258 In that case, border procedures may be applied where and for as long as those third-country nationals or stateless persons are accommodated normally at locations in proximity to the border or transit zone. As with other decisions, those made at the border or in transit zones must be made in writing and, where an application is rejected, the reasons in fact and in law must be stated.259 Furthermore, where an application is rejected, both Directives require that applicants be given information on how to challenge a negative decision, unless this has been given previously. When application was made on behalf of a number of dependants and based on the same grounds, Member States were entitled under the Asylum Procedures Directive to take one single decision covering all dependants.260 The Recast maintains this option, but includes the caveat precluding this if: [T]o do so would lead to the disclosure of particular circumstances of an applicant which could jeopardise his or her interests, in particular in cases involving gender, sexual orientation, gender identity and/or agebased persecution. In such cases, a separate decision shall be issued to the person concerned.261

257 Asylum Procedures Directive, Article 35(3). 258 Asylum Procedures Directive, Art 35(5); Recast Asylum Procedures Directive, Article 43(3). 259 Asylum Procedures Directive, Article 9; Recast Asylum Procedures Directive, Article 11. 260 Asylum Procedures Directive, Article 9(3). 261 Recast Asylum Procedures Directive, Article 11(3).

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According to the Recast Asylum Procedures Directive, border procedures may only be applied to unaccompanied minors in particular circumstances. These are: if the applicant is coming from a country considered as a safe country of origin; if they make a subsequent application; if they may be considered a danger to the national security or public order of the Member State; if they have been forcibly expelled for serious reasons of public security or public order under national law; if there are reasonable grounds to consider there is a safe third country for them, if they have misled the authorities by presenting false documents; or if they have, in bad faith, destroyed or disposed of an identity or travel document that would have helped establish his or her identity or nationality. The latter two may only be applied in individual cases where there are serious grounds for considering that the applicant is trying to conceal aspects of his/her identity likely to lead to a negative decision.262 4.14 Deemed Withdrawn and Subsequent Applications Governments are keen to maintain the discretion to deem applications as abandoned. Sometimes relatedly, subsequent applications are also common across the eu. This section will try to understand what underlies the approaches to these phenomena in the Recast Asylum Procedures Directive. Why are both practices so prevalent and so problematic in Europe? As the Commission’s public statement illustrates, subsequent applications have become an example of assumed ‘abuse’ of asylum systems.263 4.14.1 Implicit Withdrawal The provisions deeming applications to be withdrawn are also relevant to this phenomenon. Evidently, asylum-seekers are entitled to withdraw their applications for international protection explicitly. In this scenario, Member States are to provide that the determining authority either discontinues the examination or rejects the application.264 Member States may also decide that the decision to discontinue the examination is made without taking a decision and a notice is to be entered accordingly in the applicant’s file.265

262 Recast Asylum Procedures Directive, Article 25(6)(b). For a critique, see ecre (n 184) 33. 263 European Commission, Asylum Procedures accessed 25 January 2015. 264 Asylum Procedures Directive, Article 19(1); Recast Asylum Procedures Directive, Article 27(1). 265 Asylum Procedures Directive, Article 19(2) and the Recast Asylum Procedures Directive, Article 27(2).

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An application may also be implicitly withdrawn.266 The circumstances under which an applicant will be considered to have implicitly withdrawn or abandoned their application are the same across both Directives.267 First, an application may be deemed implicitly withdrawn or abandoned if the applicant fails to respond to requests for information essential to his or her application or does not appear for a personal interview.268 Secondly, it will be so deemed if the applicant absconds or leaves their place of residence without authorisation and without contacting the competent authority within a reasonable time, or fails to comply with reporting duties or other obligations to communicate.269 The Recast Asylum Procedures Directive grants the applicant the possibility of demonstrating this was due to circumstances beyond his or her control in both circumstances, whereas the original Asylum Procedures Directive left no opportunity for this in the case of absconding. If an application is implicitly abandoned or withdrawn, the determining authority may decide to discontinue examination or to reject it,270 however following the Recast adds rejection must follow an adequate examination. An applicant who reports again to the determining authority after a decision to discontinue is entitled to request their case is reopened or to make a new application. Under the Asylum Procedures Directive this might have been treated as a subsequent application but this is no longer a possibility.271 Both Directives grant Member States the possibility to set a time limit after which the case cannot be reopened, but following the Recast this must be at least nine months.272 After this point, the applicant’s case can no longer be reopened or the new application may be treated as a subsequent application. Member States may also provide that the applicant’s case may be reopened only once. Overall, this is a significant improvement.

266 Asylum Procedures Directive, Article 20; Recast Asylum Procedures Directive, Article 28. 267 Asylum Procedures Directive, Article 20(1); Recast Asylum Procedures Directive, Article 28(1). 268 Asylum Procedures Directive, Article 20(1)(a); Recast Asylum Procedures Directive, Article 28(1)(a). 269 Asylum Procedures Directive, Article 20(1)(b); Recast Asylum Procedures Directive, Article 28(1)(b). 270 Asylum Procedures Directive, Article 20(1); Recast Asylum Procedures Directive, Article 28(1). 271 Recast Asylum Procedures Directive, Article 28(2). 272 Asylum Procedures Directive Article 20(2); Recast Asylum Procedures Directive Article 28(2).

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4.14.2 Subsequent Applications A subsequent application is ‘a further application for international protection made after a final decision has been taken on a previous application, including cases where the applicant has explicitly withdrawn his or her application and cases where the determining authority has rejected an application following its implicit withdrawal’.273 An application may also be treated as a subsequent application when a dependant lodges an application after having consented to his/her case being dealt with as part of an application lodged on his/her behalf or where an unmarried minor lodges an application after an application has been lodged on his/her behalf.274 The original Asylum Procedures Directive authorised Member States to use the procedure for subsequent applications where an applicant either intentionally or due to gross negligence failed to go to a reception centre or appear before the competent authorities at a specified time,275 however this exception was not contained across the Recast Asylum Procedures Directive. Any further representations regarding an application or a subsequent application are to be examined in the framework of the previous application or in the framework of the examination of the decision under review or appeal.276 This is only so long as all the elements underlying the further representations or subsequent application can be taken into account.277 The procedure to be followed in the case of a subsequent application is as follows: member States are to first carry out a preliminary examination as to whether new elements or finings have arisen or have been presented by the applicant.278 In the case of dependents or unmarried minors this will consist of examining whether there are facts justifying a separate application. Where an application is subject to a preliminary examination, the applicant still enjoys the same guarantees.279 The Recast is based on the premise that subsequent applications are likely to be abusive, and permits Member States to truncate procedures for a preliminary 273 Recast Asylum Procedures Directive, Article 2(q). 274 Asylum Procedures Directive, Article 32(7); Recast Asylum Procedures Directive, Article 40(6). 275 Asylum Procedures Directive, Article 33. 276 Asylum Procedures Directive, Article 32(1); Recast Asylum Procedures Directive, Article 40(1). 277 Asylum Procedures Directive, Article 32(1); Recast Asylum Procedures Directive, Article 40(1). 278 Asylum Procedures Directive, Article 32(3); Recast Asylum Procedures Directive, Article 40(2). 279 Asylum Procedures Directive, Article 34(1); Recast Asylum Procedures Directive, Article 42(1).

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examination. Member States may oblige the applicant to specify and substantiate the facts justifying a new procedure.280 Furthermore, the preliminary examination may be conducted solely on the basis of written submissions without a personal interview if the applicant is not a minor.281 These rules shall not however, render impossible the access of applicants to a new procedure or result in the effective annulment or severe curtailment of such access.282 The Recast Asylum Procedures Directive however longer includes the option to require any new information to be submitted within a certain time after it was obtained.283 If the preliminary examination suggests new elements or findings have either arisen or been presented by the applicant which significantly add to the likelihood of the applicant qualifying as a beneficiary of international protection, the application shall be further examined.284 If there are no new elements, the application need not be further examined and is deemed inadmissible.285 Recital 36 of the Preamble to the Recast Asylum Procedures Directive notes that it would be disproportionate in these instances to oblige Member States to carry out a new full examination procedure. Member States may also provide other reasons why a subsequent application should be further examined.286 Member States must ensure that the applicant is informed of the outcome of the preliminary examination and, if the application is not to be further examined, of the reasons why and the possibilities for seeking an appeal or review of the decision.287 Member States also have the possibility to provide that further examination after new elements or findings are identified, or on the basis of other reasons, takes place only if the applicant had been incapable of asserting the information through no fault of their own.288 It is difficult to see how this option is fair: many applicants may struggle to explain their claims, or be ill-advised about the pertinent aspects of their claims at the outset. Depending 280 281 282 283 284 285 286 287 288

Recast Asylum Procedures Directive, Article 42(2)(a). Recast Asylum Procedures Directive, Article 42(2)(b). Recast Asylum Procedures Directive, Article 42(2). Asylum Procedures Directive, Article 34(2)(b). Asylum Procedures Directive, Article 32(4); Recast Asylum Procedures Directive, Article 40(3). Recast Asylum Procedures Directive, Article 40(5). Asylum Procedures Directive, Article 32(5); Recast Asylum Procedures Directive, Article 40(3). Asylum Procedures Directive, Article 34(3)(a); Recast Asylum Procedures Directive, Article 42(3). Asylum Procedures Directive, Article 32(6); Recast Asylum Procedures Directive, Article 40(4).

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on how the proviso is applied, it could be applied as to avoid the re-­examination of strong claims. A subsequent application may, under the Recast, be exempt from the right to remain in the territory for the duration of the application.289 This applies in two scenarios: first, where the preliminary examination concludes that the subsequent application ought not to be further examined due to it being merely made in order to delay or frustrate the applicant’s imminent removal from the Member State. Secondly, where a person makes another subsequent application in the same Member State following either a final decision finding a prior subsequent application inadmissible or a final decision rejecting that application as unfounded. Member States may make such an exception only where the determining authority considers it will not lead to direct or indirect refoulement in violation of that Member State’s international and Union obligations. In these situations, Member States may also derogate from the time limits normally applicable in accelerated procedures and admissibility procedures. Member States may also derogate from the right of the applicant to remain in the territory pending the outcome. As Garlick notes, these provisions seem to run counter to the general move in the Recast to ensure the suspensive effect of appeals.290 The unhcr Asylum Procedures Directive Study highlights the prevalence of repeated applications. According to this research, the percentage of applications that were subsequent applications in 2008 was 27.1% in Belgium, 17% in France and 36% in the Czech Republic.291 It notes that: unhcr is not aware of any qualitative research or data which analyses the reasons for subsequent applications. However, to the extent that subsequent applications may be due to deficiencies in first instance procedures or restrictions on appeal, unhcr’s recommendations are aimed at reducing these as causes for subsequent applications.292 However, rather than investigate and deal with the causes of subsequent applications, the Recast is based on the premise that they are abusive, a dangerous

289 Recast Asylum Procedures Directive, Article 41(1). 290 Garlick (n 64) 281. 291 unhcr, Asylum Procedures Directive Study (n 26) 364. See further unhcr, Safe at Last? Law and Practice in Selected eu Member States with Respect to Asylum-Seekers Fleeing Indiscriminate Violence (Geneva 2011). 292 Ibid 365.

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assumption given the reality of accelerated and unreliable first instance procedures in many Member States. 4.15 Right to an Appeal and Effective Judicial Remedy The right to an effective remedy is a general principle of eu law, reflected in Article 47 eu Charter of Fundamental Rights and Article 13 echr. In hid, the cjeu noted that ‘in accordance with a fundamental principle of European Union law, the decisions taken in relation to an application for asylum and the withdrawal of refugee status must be subject to an effective remedy before a court or tribunal’.293 The Asylum Procedures Directive and its recast both contain specific provisions on the right to an effective remedy. However, the original Asylum Procedures Directive provision was terse, and left much to be judicially resolved. The first cjeu rulings on the right to an effective remedy under the original Asylum Procedures Directive were somewhat underwhelming. In Diouf, the cjeu stated that this right does not extend to a number of levels of jurisdiction,294 but only to a final decision rejecting the application on the substance, thereby excluding preparatory decisions.295 Thus, it was not necessary that the applicant could challenge the decision to apply an accelerated procedure rules so long as the reasons for the decision to accelerate should be amenable to review when the final decision was challenged.296 The case further outlined that an effective ‘the merits of the reasons which led the competent administrative authority to hold the application for international protection to be unfounded or made in bad faith, there being no irrebuttable presumption as to the legality of those reasons’. In hid, the cjeu considered the alleged shortcomings of Irish Refugee Appeals Tribunal against which several domestic judicial reviews alleging bias within the institution have been brought.297 The cjeu did not consider whether it was contrary to the right to an effective remedy that a Government Minister retained discretion to override a negative decision and that organizational and administrative links between the bodies responsible for first instance determination of applications and the determination of appeals remained. In relation to the former, the cjeu noted that the Irish Refugee Appeals Tribunal was the 293 294 295 296 297

hid (n 27), para 81. Diouf (n 27), para 69. Ibid paras 41–43. Ibid para 56. For an insight into the context, see S. Conlan, ‘Political Will Needed for Serious Asylum Reform’ The Irish Times (1 June 2012) accessed 25 January 2014.

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competent tribunal to examine appeals under the Refugee Act and its decisions were only liable to being overridden by the government if an appeal was rejected. In that case, the Minister could still recognize the refugee.298 Furthermore, the cjeu also considered that the Irish Refugee Appeals Tribunal was sufficiently independent.299 The part of the ruling on independence fails to grasp the nettle at the heart of the reference. It was alleged not that the rat was not a ‘tribunal’ in the sense required to be able to make preliminary references in Article 267 tfeu. Instead, it was alleged that it was not ‘independent’ in the sense of being sufficiently independent of the government against whose decisions it adjudicates appeals. However, the Asylum Procedures Directive Preamble links the criteria for independence to Article 267 tfeu, not independence qua fairness.300 The Court noted that the institutional features of the Irish Refugee Appeals Tribunal were adequate and that judicial remedies before the Irish courts appeared ‘in themselves, to be capable of protecting the rat against potential temptations to give in to external intervention or pressure liable to jeopardize the independence of its members’.301 In hn,302 the cjeu discussed Ireland’s dual procedures for determining refugee status and subsidiary protection. It held that the procedural safeguards in the original Asylum Procedures Directive did not constrain Ireland’s separate procedures for determining subsidiary protection under the 2004 Qualification Directive, and that such guarantees need only apply to subsidiary protection assessments if refugee status and subsidiary protection are examined in a single procedure.303 The Court held, however, that there was a duty to make decisions in a reasonable time. This was compromised by the Irish procedure, which required applications to apply for refugee status, wait for rejection and then make a separate application for subsidiary protection. This right was rooted in the general principles and Article 41 eu Charter of Fundamental Rights, the right to good administration.304 298 hid (n 27), paras 86–87. 299 Ibid paras 94–104. 300 Asylum Procedures Directive, Preamble, Recital 27 states, ‘in accordance with a fundamental principle of European Union law, the decisions taken in relation to an application for asylum and the withdrawal of refugee status must be subject to an effective remedy before a court or tribunal within the meaning of Article 267 tfeu’. 301 hid (n 27), para 103. 302 Case C-604/12 hn [2013] oj C 86/9. 303 Ibid para 39. 304 Ibid paras 47, 50, 56.

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The Recast Asylum Procedures Directive contains more detailed provisions regarding the safeguards afforded to applicants: Member States shall ensure that an effective remedy provides for a full and ex nunc examination of both facts and points of law, including, where applicable, an examination of the international protection needs pursuant to [the Recast Qualification Directive], at least in appeals procedures before a court or tribunal of first instance. Member States shall provide for reasonable time limits and other necessary rules for the applicant to exercise his or her right to an effective remedy… The time limits shall not render such exercise impossible or excessively difficult. Member States may also provide for an ex officio review of decisions taken pursuant to Article 43.305 We will now examine these requirements in more detail. 4.15.1 Full Ex Nunc Examination The Recast Asylum Procedures Directive provides for a greater level of judicial scrutiny. The original Directive left unspecified what the features of an effective remedy were, although Member States were to, ‘where appropriate, provide for rules in accordance with their international obligations’.306 Article 46(3) of the Recast Asylum Procedures Directive is more explicit, providing for a ‘full and ex nunc examination of both facts and points of law’.307 This reflects a fairly straightforward incorporation of the echr standard from Salah Sheekh v the Netherlands.308 The Belgian Constitutional Court more recently discussed the need for an ex nunc assessment in light of the ‘procedure for annulment’ in Belgium for appealing negative decisions on asylum where the applicant is from a safe country of origin. The procedure for annulment only provided for an ex tunc procedure, not requiring courts to consider anything new or not known to the decision maker at the time. According to the Belgian Constitutional Court, this violated the echr and Belgian law has since been amended to take this into

305 306 307 308

Recast Asylum Procedures Directive, Article 46(3) and (4). Asylum Procedures Directive, Article 39(3). Recast Asylum Procedures Directive, Article 46(3). Salah Sheekh v the Netherlands Appl no 1948/04 (ECtHR, 11 July 2007), para 136.

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account: there is now a full and ex nunc judicial remedy for asylum-seekers from safe countries of origin.309 4.15.2 Suspensive Effect The suspensive effect of appeals has also been a recurring issue before the Strasbourg Court, as litigants sought to challenge various national measures which removed or restricted that right. While the Strasbourg case law is now clear that once there is an arguable case of real risk of Article 3 breach, automatic suspensive effect is required,310 to protect the applicant against the irreversible effects of such a breach,311 the Recast Asylum Procedures Directive contains a complex set of rules on this matter. This section sets them out in their full complexity, and then considers whether they meet the Strasbourg requirements. The basic rule of automatic suspensive effect appears in Article 46(5) of the Recast Asylum Procedures Directive, with suspensive effect both during a ‘reasonable’ time-limit to introduce the appeal and pending the outcome of the appeal. However, there are four significant exceptions in Article 46(6) relating to manifestly unfounded or unfounded applications (unless this is due to a failure to make an application as soon as possible), inadmissible applications, rejected applications previously implicitly withdrawn or abandoned and applicants from a ‘European safe third country’. As noted above, an unfounded application seems similar to a rejected application in that an application may only be treated as unfounded once the determining authority has established that the applicant does not qualify for international protection.312 An application may be treated as manifestly unfounded if the determining authority has established that the applicant does not qualify for international protection and the grounds for using an accelerated procedure exist.313 Inadmissible applications, it will be recalled, may be so for any one of the five following reasons (1) another Member State has granted protection; (2) the first country of asylum concept is applicable; (3) the safe third country concept is ­applicable; 309 Law of 10 April 2014 (Belgian Law Gazette [21 May 2014] 40320). See further L. Leboeuf, ‘Le juge, garant ultime de l’équité de la procédure d’asile’ (2014) 2 Administration Publique 221; S. Ganty and M. Baumgärtel, ‘Effective Remedies as Capabilities: Toward a User Perspective to Human Rights of Migrants in Belgium’ (2014) 8(2) hr & ild 215–234. 310 Gebremedhin v France Appl no 25389/05 (ECtHR, 26 April 2007), para 66; mss v Belgium and Greece (n 164), para 393; ma v Cyprus Appl no 41872/10 (ECtHR, 23 July 2013), para 135. 311 Čonka v Belgium Appl no 51564/99 (ECtHR, 5 February 2002), para 79; De Souza Ribeiro v France Appl no 22689/07 (ECtHR, 13 December 2012), paras 82–83. 312 Recast Asylum Procedures Directive, Article 32 (1). 313 Recast Asylum Procedures Directive, Article 32(2).

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(4) the application is a subsequent one with no new evidence put forward; or (5) where the applicant had previously consented to have his or her case be part of an application lodged on his or her behalf, and there are no facts relating to the dependant’s situation which justify a separate application.314 It is difficult to see how in implementation it will not lead to breaches of Article 13 echr, especially in the context of accelerated procedures with short time-limits. The ECtHR has developed a clear jurisprudence regarding when the right to an effective remedy in asylum cases requires automatic suspensive effect. If there is a risk the applicant will be removed to a country where he faces a real risk of becoming a victim of treatment contrary to Article 3 echr then in order to be effective, the domestic remedy must have suspensive effect. In Gebremedhin v France,315 the ECtHR examined the French procedure for finding applications manifestly unfounded. It emphasized that in order to be effective the domestic remedy must have suspensive effect as of right. France attempted to argue that while the remedy did not have automatic suspensive effect, it was sufficient for it to have suspensive effect ‘in practice’. The Court referred to an earlier decision in Čonka where a similar argument had been made noting, In that regard the Court stressed in particular that ‘the requirements of Article 13, and of the other provisions of the Convention, take the form of a guarantee and not of a mere statement of intent or a practical arrangement. That is one of the consequences of the rule of law, one of the fundamental principles of a democratic society, which is inherent in all the Articles of the Convention’.316 Only if there is an arguable case that Article 3 (or another substantive right) has been breached, the requirements of an effective remedy under Article 13 become pertinent. We take the view that the ‘arguability’ threshold in Article 3 cases will be met in most asylum cases so that automatic suspensive effect in all asylum cases is appropriate.317 Indeed, even more rights protective is Renemann’s interpretation, based on Sultani,318 that the Strasbourg caselaw 314 315 316 317

Recast Asylum Procedures Directive, Article 33(2). Gebremedhin v France (n 310). Ibid para 66. This is an argument developed in T. Spijkerboer, ‘Subsidiarity and “Arguability”: The European Court of Human Rights’ Case Law on Judicial Review in Asylum Cases’ (2009) 21 ijrl 48. 318 Sultani v France Appl no 45223/05 (ECtHR, 20 September 2007), paras 50–52.

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requires suspensive effect once the applicant in an appeal invokes Article 3 echr.319 According to the ECtHR, automatic suspensive effect is not only required when there is complaint regarding Article 3. It has also been held necessary to protect rights under Article 2 echr320 and Article 4 of Protocol No. 4.321 In contrast, if a breach of Article 8 echr is threatened, an entitlement to request suspension of the order will suffice. In the case De Souza Ribeiro v France the ECtHR stated: [W]here expulsions are challenged on the basis of alleged interference with private and family life, it is not imperative, in order for a remedy to be effective, that it should have automatic suspensive effect. Nevertheless, in immigration matters, where there is an arguable claim that expulsion threatens to interfere with the alien’s right to respect for his private and family life, Article 13 of the Convention in conjunction with Article 8 requires that States must make available to the individual concerned the effective possibility of challenging the deportation or refusal-of-residence order and of having the relevant issues examined with sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality…322 In the case of each of the above exceptions to the right to remain in the Recast Asylum Procedures Directive, suspensive effect can be requested.323 A court may also rule ex officio that an applicant is still entitled to remain on the territory of the Member State, even if the appeal is not automatically suspensive. To make these exceptions palatable, Article 46(7) contains a variety of conditions for the exceptions to apply when border procedures are used including the necessary legal and linguistic assistance, one week to prepare the request for suspensive effect and judicial examination of the negative decision on both facts and points of law. Until the proceedings determining whether or not the applicant should be granted the right to remain, the applicant is allowed to remain in the territory of the Member State.324 As Renemann explains, the 319 M. Renemann, eu Asylum Procedures and the Right to an Effective Remedy (Hart Publishing 2014) 133. 320 ma v Cyprus (n 311), para 133. 321 Čonka v Belgium (n 310), paras 81–83; Hirsi Jamaa (n 29), para 206. 322 De Souza Ribeiro v France (n 311), para 83. 323 Recast Asylum Procedures Directive, Article 46(6). 324 Recast Asylum Procedures Directive, Article 46(8).

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Recast Asylum Procedures Directive translates the right to an effective remedy into a two-system option: either Member States grant the remedy automatic suspensive effect, or grant automatic suspensive effect to the request for interim protection that an applicant may make where the exceptions in Article 46(6) apply.325 This respects Member States’ procedural autonomy,326 but it is regrettable that this complex approach to suspensive effect was taken. The ECtHR has previously noted the risks involved in a system where stays of execution must be applied for and are granted on a case-by-case basis.327 A similar conclusion was reached by the Belgian Constitutional Court in its decision on the ‘procedure for annulment’, noted above. The possibility existed to ask for a stay of execution when deportation was imminent, but this was time-limited. For this reason, the Belgian Constitutional Court found that the procedure breached the echr. The new Belgian law on asylum procedures for applicants from a safe country of origin takes this into account and provides for automatic suspensive effect. 4.15.3 Time Limits Member States are to provide for reasonable time limits and other necessary rules for the applicant to exercise their right to an effective remedy.328 The Recast adds that time limits are not to render such exercise ‘impossible or excessively difficult’, simply rendering explicit the requirement imposed by the general principles of eu law. What is a reasonable time limit is dependent on the circumstances of the case. In domestic case law, constitutional courts in Austria and the Czech Republic have found deadlines that were two and seven days too short.329 In Diouf, the cjeu held that a 15-day limit for bringing an appeal in an accelerated procedure did ‘not seem, generally, to be insufficient in practical terms to prepare and bring an effective action and appears reasonable and proportionate in relation to the rights and interests involved’.330 The Court, however, did 325 Renemann, eu Asylum (n 319) 142. 326 Ibid 143. 327 ma v Cyprus (n 310), para 137. 328 Asylum Procedures Directive Article 39(2); Recast Asylum Procedures Directive, Article 46(4). 329 Austrian Constitutional Court (Österreichische Verfassungsgerichtshof), decision G31/98,G79/98, G82/98, G108/98 of 24 June 1998; Czech Constitutional Court (Ústavní soud Ceské republiky) Decision No. 9/2010, Coll. which came into effect in January 2010. As cited in eu Fundamental Rights Agency (fra), Handbook on European Law Relating to Asylum, Borders and Immigration (Publications Office of the eu 2013) 96. 330 Diouf (n 27), para 67.

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envisage that the national court should remit the case for re-examination under an ordinary (i.e. non-accelerated) procedure should it prove necessary in individual cases.331 The manner in which the cjeu arrived at its conclusion in Diouf that 15 days was an adequate time period reflects some complacency around asylum procedures. The Advocate General cited two Strasbourg cases, of doubtful relevance. Kudla v Poland332 concerned remedies for excessive periods in detention, while Ryabaykh v Russia333 concerned a violation of Article 6 echr when a final judicial decision was quashed on supervisory review. The Court’s assessment of the reasonableness of the 15-day limit is largely unmotivated. This contrasts with Pontin, where a 15-day time-limit to bring proceedings was also examined, in a case concerning the enforcement of eu rights to protect pregnant workers. In Pontin, the assessment was more contextual,334 and although the Court left the matter ultimately for the national court to assess, it cast doubt on whether such a short time-limit would permit effective enforcement under the circumstances.335 Withdrawal of Protection – Procedures for Cancellation, Cessation, Revocation The Asylum Procedures Directive and Recast Asylum Procedures Directive both deal with procedures for cancellation, cessation and revocation of refugee status and subsidiary protection. As noted in the analysis of the Recast Qualification Directive in this volume, these issues are conflated in eu law, in a way which potentially undermines international refugee law.336 According to both Directives:

4.16

Member States shall ensure that an examination to withdraw international protection from a particular person may commence when new elements or findings arise indicating that there are reasons to reconsider the validity of his or her international protection.337 331 332 333 334

Ibid para 68. Kudla v Poland Appl no 30210/96 (ECtHR, 26 October 2000). Ryabykh v Russia Appl no 52854/99 (ECtHR, 24 July 2003). Case C-63/08 Pontin [2009] ecr I-10467, para 62. The cjeu stated, ‘it should be noted in that regard that…the 15-day period for bringing an action for nullity and reinstatement must be regarded as being particularly short, in view inter alia of the situation in which a woman finds herself at the start of her pregnancy’. 335 Ibid para 67. 336 See Hemme Battjes’ contribution in this volume. 337 Asylum Procedures Directive, Article 37; Recast Asylum Procedures Directive, Article 44.

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It is unclear whether this is exhaustive. There are a number of procedural safeguards for the person concerned. The person concerned must be informed of this in writing and given the opportunity of a personal interview to submit reasons as why their international protection should not be withdrawn.338 Furthermore, the competent authority must be able to obtain precise and upto-date information from various sources as to the general situation prevailing in the countries of origin of the persons concerned.339 Where information on an individual case is collected for the purposes of reconsidering international protection, Member States must ensure that those accused of persecution or serious harm are not informed of the fact that the person concerned is a beneficiary of international protection whose status is under reconsideration. Member States are also to ensure they do not jeopardize the physical integrity of the person or their dependants, or the liberty and security of their family members still living in the country of origin. Once a decision is made, Member States must ensure that the decision withdrawing international protection is given in writing with the reasons in fact and in law are stated and that information on how to challenge the decision is given in writing. Member States may also decide that international protection shall lapse by law where the beneficiary of international protection has unequivocally renounced his or her recognition as such.340 A Member State may also provide that international protection shall lapse by law where the beneficiary of international protection has become a national of that Member State. The Recast Asylum Procedures Directive is narrower than the Asylum Procedures Directive, which allowed for refugee status to lapse automatically whenever any of the grounds for cessation under the 2004 Qualification Directive applied. 4.17 Children A minor is defined as a third-country national or stateless person below the age of 18 years.341 What amounts to being ‘unaccompanied’ is found in Article 2(l) of the Recast Qualification Directive. The definition of a representative of an unaccompanied minor has been altered, so that such a person is to ‘assist 338 Asylum Procedures Directive, Article 38(1); Recast Asylum Procedures Directive, Article 45(1). 339 Asylum Procedures Directive, Article 38(1)(c); Recast Asylum Procedures Directive, Article 45(2). 340 Asylum Procedures Directive, Article 38(4); Recast Asylum Procedures Directive, Article 45(5). 341 Asylum Procedures Directive, Article 2(l).

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and represent […] with a view to ensuring the best interests of the child’. Another chapter in this volume focuses on the Recast provisions on minors.342 Accordingly, we only provide a short summary here. Under the Recast Asylum Procedures Directive, Member States may use medical examinations to determine the age of unaccompanied minors if the minor consents. Refusal to undergo a medical examination cannot be the sole reason for rejecting an application.343 Medical age assessment of asylum-­ seekers is scientifically wanting, particularly when one considers the absence of birth registration and reliable basic data in the countries of origin of most refugees, as Noll has argued.344 The error margin is also known to be significant, even if the applicant is being assessed in light of appropriate basic data for the control group.345 Member States are to ensure that minors have the right to make an application for international protection on their own behalf, or through their parents.346 Member States may also make provision for an application to be made on behalf of dependents, although dependent adults must consent to this.347 The Recast Asylum Procedures Directive expands on the consent requirement insisting that it is requested at the time the application is lodged or, at the latest, when the personal interview with the dependent adult is conducted. Before consent is requested, each dependent adult shall be informed in private of the relevant procedural consequences of the lodging of the application on his or her behalf and of his or her right to make a separate application for international protection. There are also a number of specific guarantees for unaccompanied minors. According to Recital 33 of the Preamble to the Recast Asylum Procedures Directive, the best interests of the child should be a primary consideration when making a decision. In assessing what is in the best interests of a minor, Member States should take account of the minor’s well-being and social development including his/her background. Member States are to ensure that a representative is appointed to represent and assist the unaccompanied minor 342 See Vera Honuskova’s contribution to this volume. 343 Asylum Procedures Directive, Article 17(5); Recast Asylum Procedures Directive, Article 25(5). 344 G. Noll, ‘Junk Science? Four Arguments Against the Radiological Age Assessment of Unaccompanied Minors Seeking Asylum’ (2015) Lund Uni. Working Paper. 345 A. Schmeling, G. Geserick, W. Reisinger and A. Olze, ‘Age Estimation’ (2007) 165(2–3) Forensic Sci Int 178. On the dubious accuracy of dental ageing more specifically, see Y v Hillingdon [2011] ewhc 1477 (Admin), per Keith J., paras 28–32. 346 Recast Asylum Procedures Directive, Article 7(3). 347 Asylum Procedures Directive, Article 6(3) Recast Asylum Procedures Directive, Article 7(2).

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with his/her application.348 The Recast Asylum Procedures Directive adds a number of additional guarantees such as requiring the minor is informed immediately of the appointment of the representative, requiring that the representative acts and has expertise in securing the best interests of the child and preventing organizations or individuals with conflicting interests from acting as representatives.349 The Asylum Procedures Directive allowed Member States not to appoint a representative in a number of circumstances, namely where the unaccompanied minor is likely to reach the age of maturity before a decision at first instance is taken, where the minor can avail themselves, free of charge, of a legal adviser or where the minor is married or has been married.350 Member States were also able not to appoint a representative where the unaccompanied minor was 16 years old or over, unless they could not otherwise do so.351 The Recast Asylum Procedures Directive reduces these exceptions, allowing a Member State not to appoint a representative where the unaccompanied minor will reach 18 before a first instance decision is made. As regards the personal interview, the representative must have the chance to inform the unaccompanied minor about the meaning and possible consequences of the personal interview and about any possible preparation. Member States may require the minor to be present at the interview although the representative or another legal adviser are also to be present and given the opportunity to ask questions or make comments.352 Persons with knowledge of the special needs of minors must also carry out the personal interview itself and prepare the decision by the determining authority.353 The Recast Asylum Procedures Directive also adds the requirement for Member States to ensure that interviews with minors are conducted in a child-appropriate manner.354 5

Appraisal: Two Stereotypes (or ‘Ideal Types’)? The Abusive AsylumSeeker v the Vulnerable Asylum-Seeker

Having thus provided a detailed assessment of the Directive, we suggest a ­ seful perspective through which to understand the ambivalent legislative u 348 Asylum Procedures Directive, Article 17(1)(a); Recast Asylum Procedures Directive, Article 25(1)(a). 349 Recast Asylum Procedures Directive, Article 25(1)(a). 350 Asylum Procedures Directive, Article 17(2). 351 Asylum Procedures Directive, Article 17(3). 352 Asylum Procedures Directive, Article 17(1)(b); Recast Asylum Procedures Directive, Article 25(1)(b). 353 Recast Asylum Procedures Directive, Article 25(3). 354 Recast Asylum Procedures Directive, Article 15(3)(e).

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outcome. The complexity of the Directive is readily explained by considering that it aims to cater for both ‘abusive applicants’ and ‘vulnerable applicants’ (or applicants in need of special procedures). Both concepts invite us to imagine two contrasting stereotypes of the asylum-seeker. Despite their evident differences, both notions suggest that prior to the refugee status determination itself some assessment of asylum claimants should take place in order to determine which procedures to apply. At best, this signals an added layer of complexity. At worst, it suggests that asylum claimants may be judged before their asylum claims are, and a determination of the procedures applicable made on the basis of cursory examination. Many of the issues which are relevant to a vulnerability assessment (such as whether the applicant has suffered trauma from sexual violence) are difficult enough to assess in an asylum process where the applicant is well supported and trusts the authorities. The central premise here is that this approach of devising different procedures, based on some sort of pre-assessment of whether the applicant is a ‘good’ or ‘bad’ asylum-seeker, is liable to undermine the fairness, reliability and efficiency of asylum determinations. As long as we insist on doing individualized refugee status determination, rather than protecting refugees on a group basis, an approach that attempts to siphon applicants into different categories and develop diverse procedures to cater for them before their claims are assessed, looks deeply counterproductive. 5.1 Vulnerability and Special Needs While the ‘abusive asylum-seeker’ merely haunts the Directive’s provisions, undefined, the applicant with special needs is legislatively defined, not only in the Recast Asylum Procedures Directive, but also in other guises in other eu measures. Article 2(d) of the Recast Asylum Procedures Directive introduces the concept of an ‘applicant in need of special procedural guarantees’. This is defined as ‘an applicant whose ability to benefit from the rights and comply with the obligations provided for in this Directive is limited due to individual circumstances’. Garlick notes that this definition is ‘broad and somewhat circular’.355 Recital 29, however indicates that factors to be taken into account include age, gender, sexual orientation, gender identity, disability, serious illness, mental disorders or as a consequence of torture, rape or other serious forms of psychological, physical or sexual violence. Member States are required to assess vulnerability within a reasonable time following an application for international protection.356 However, in some 355 Garlick (n 50) 221. 356 Recast Asylum Procedures Directive, Article 24(1).

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instances, the sources of vulnerability may relate to questions of fact contested within the refugee status process. Although refugee status determination is concerned with a forward-looking assessment of the well-foundedness of fear and/or real risk of particular harms, past persecution may be relevant. So for instance, whether someone has been tortured may be an element of both the refugee status determination assessment and the vulnerability assessment. The vulnerability assessment may be integrated into existing national procedures, or into the assessment of the special reception needs of vulnerable persons under the Recast Reception Conditions Directive,357 and need not take the form of an administrative procedure.358 The Recast Reception Conditions Directive contains a somewhat different concept of vulnerability. It requires Member States to: [T]ake into account the specific situation of vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, victims of human trafficking, persons with serious illnesses, persons with mental disorders and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, such as victims of female genital mutilation.359 Vulnerable asylum-seekers are also defined as ‘applicant[s] with special reception needs’, who require special reception guarantees.360 Although non-exhaustive, the list of persons in need of special procedural guarantees under the Recast Asylum Procedures Directive does not mirror Article 21 of the Recast Reception Conditions Directive,361 suggesting that ‘special reception guarantees’ and ‘special procedural guarantees’ may apply to different categories of protection seekers, even though their assessment may be integrated into a single procedure. The notion of vulnerability invariably begs the question: vulnerable to what? All human beings are vulnerable to illness, injury, aging, heartache, for instance. In the Recast Asylum Procedures Directive, the approach is to link to the idea that some asylum-seekers will be in need of extra support in the asylum process, and that some forms of procedures (designed for the abusers) are not 357 358 359 360 361

Recast Reception Conditions Directive, Article 22. Recast Asylum Procedures Directive, Article 24(2). Recast Reception Conditions Directive, Article 21. Recast Reception Conditions Directive, Article 2(k). Recast Asylum Procedures Directive, Recital 29. Compare, Recast Reception Conditions Directive, Article 21.

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suitable for them. According to Article 24(4), Member States shall ensure that the need for special procedural guarantees is also addressed, in accordance with the Recast Asylum Procedures Directive, where such a need becomes apparent at a later stage of the procedure, without necessarily restarting the procedure. Once an applicant has been identified as in need of special procedural guarantees, they are to be provided with adequate support in order to allow them to benefit from the rights and comply with the obligations of the Directive.362 Accelerated or border and transit zone procedures are not to be applied where such adequate support cannot be provided within the framework they set out,363 in particular where Member States consider that the applicant is in need of special procedural guarantees as a result of torture, rape or other serious forms of psychological, physical or sexual violence.364 If, in these circumstances, the application was rejected and automatic suspensive effect was not granted to the applicant, the Member State must apply the extra procedural guarantees set out in Recast Asylum Procedures Directive Article 46(7). These require that the applicant has the necessary interpretation and legal assistance, at least one week to prepare and submit arguments, and for any negative decision to be reviewed in terms of fact and law. Otherwise, Member States ought to grant suspensive effect until the time limit for appeal has expired or, once submitted, pending the outcome of the remedy.365 The notion of the ‘special needs’ of some asylum-seekers contrasts with the approach to ‘vulnerability’ developed in the Strasbourg jurisprudence. We should note a different notion of vulnerability of asylum-seekers in the case law of the ECtHR. In mss, the Court speaks of an applicant’s ‘vulnerability inherent in his situation as an asylum-seeker’.366 Asylum-seekers are interpreted ‘as such, [members] of a particularly underprivileged and vulnerable population group in need of special protection in the form of basic reception facilities’.367 In the eyes of the ECtHR, the asylum-seekers are a vulnerable category for legal reasons: they lack effective rights to work, and their right to stay in the territory is by definition precarious, and their status requires recognition. As the host state places them in this particular condition, it has positive 362 363 364 365 366 367

Recast Asylum Procedures Directive Article 24(3). As set out to in Article 31(8) and Article 43 of the Recast Asylum Procedures Directive. Recast Asylum Procedures Directive Article 24(3), second subpara. Recast Asylum Procedures Directive, Article 46(7). mss v Belgium and Greece (n 164), para 233. Ibid., para 251; Hassan v Netherlands and Italy Appl no 40524/10 (ECtHR, 27 August 2013), para 179.

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duties toward them to take measure to ensure their living conditions are not inhumane and degrading. This legal notion of ‘vulnerability’ embraces all ­asylum-seekers. They are vulnerable as a matter of legal status, not because of a particular identity or history. The State has particular positive legal duties to all asylum-seekers, as the migration control prerogatives place them in a legally vulnerable position. That, as a matter of fact, this population also includes many individuals with particular health and psychosocial needs should be borne in mind when deciding how to meet those duties. But the particular additional needs of some should not obscure the vulnerability of all as a category. These different approaches to vulnerability reflect a deep tension in the Recast Asylum Procedures Directive. While the list of sources of vulnerability potentially covers all asylum-seekers, the concept is built around a notion of selectivity. Only some asylum-seekers have special needs in the process. Those who do not have these needs are assumed able to navigate even accelerated procedures effectively. But if they are too wily, and exploit their procedural entitlements too much, their actions may lead them to be regarded as ‘abusers’ of the system. 5.2 The Abusive Asylum-Seeker If the notion of the asylum-seeker with particular needs suggests a depiction of a passive victim who needs to be guided through the process, by contrast, the abusive asylum-seeker is wily, and his or her tendency to exploit procedural entitlements must be met with additional procedural powers. Thus, the Commission’s public statement singles out repetitive applications by the same person as an example of ‘abuse’, where the asylum system is used to ‘prevent removal indefinitely by continuously making new asylum applications’.368 The possibility that those who have experienced ‘torture, rape or other serious forms of psychological, physical or sexual violence’ might precisely be the ones to resist removal using all means available is implicitly rejected by framing the discourse around the binary stereotypes. The abusive claimant, it may be inferred from the Recast Asylum Procedures Directive, may variously use false identity documents, or destroy them; seek to evade the Dublin system; or make multiple asylum applications, in particular in order to seek to evade deportation. We know that refugees frequently come from countries where identity documents are not the norm; and that to get to the eu, smugglers are usually involved. We also know that smugglers often advise their clients to destroy their identity papers. Subsequent applications, it 368 European Commission, Asylum Procedures (n 263).

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would seem, at least sometimes follow-on from faulty accelerated first-instance procedures.369 And many evade Dublin for good reasons too, leaving illegal detention and dire reception conditions, to seek asylum elsewhere in Europe. This is not to respond to one stereotype with another, but to simply point out that those with strong protection needs may often engage in behaviour that the Recast Asylum Procedures Directive seems to assume is ‘abusive’. In many other fields, eu law has developed sophisticated notions of ‘abuse of rights’, to ensure that straightforward reliance on legal norms and entitlements is protected behaviour, and only in rare cases is behaviour which undermines the purpose of the rules in a well-defined manner is singled out as ‘abusive’.370 In contrast here, the notion of ‘abuse’ is ill-defined and used to close off certain procedural avenues at the discretion of the State. 6 Conclusion To conclude, we suggest that our ambivalent assessment of the Recast Asylum Procedures Directive may be understood when its attempt to legislate for the good (i.e. vulnerable) and bad (i.e. abusive) asylum-seeker is borne in mind. As our detailed analysis has shown, while the Directive enhances some procedural protections, it facilitates some practices that seem liable to undermine the procedural integrity of the asylum process further. As stated at the outset, the Recast Asylum Procedures Directive contains many improvements over its predecessor. However, it is underwhelming, and reflects the legacy of its predecessor’s tendency to institutionalise special procedures, in particular in that it permits siphoning different asylum-seekers into different procedures at the outset, before their claims are fully examined. Experience has demonstrated that attempts to truncate procedures and reject claims without a full examination are likely to lead to more appeals, judicial reviews and applications to the ECtHR. While the Recast Asylum Procedures Directive does limit the grounds for accelerated and unfounded procedures, and insists that accelerated procedures adhere to the basic procedural guarantees at first instance, it maintains the institutional practice of siphoning different claims into different processes at the outset. The recast, if anything, may increase use of border procedures, and in its approach to ‘applicants with special procedural needs’ sets up a further layer of complexity. 369 See Part 4.14 above. 370 R. de la Feria and S. Vogenauer (eds), Prohibition of Abuse of Law: A New General Principle of eu Law? (Hart Publishing 2011).

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Many of the exceptions in the Asylum Procedures Directive have been removed or narrowed. Moreover, there are strong general guarantees as regards the interview, training and the full and ex nunc nature of appeals (in line with Salah Sheekh). However, several guarantees are subject to the ‘large number[s]…’ caveat, which lacks clarity. While we have suggested this ambiguous term may be amenable to judicial clarification, meanwhile, it is liable to undermine protection. The provisions of the Recast Asylum Procedures Directive are certainly detailed. Some of that detail has not contributed to clarity. In particular, on applicants with special needs, unaccompanied minors, legal aid and the suspensive effect of appeals, detail may be equated with some degree of obfuscation. This is all the more regrettable, as legal aid and automatic suspensive effect are now the subject of relatively clear jurisprudence of the ECtHR. The failure to translate these principles into bright line rules in the Recast Asylum Procedures Directive means that Member States are likely to continue to run systems that fail to vindicate the rights of asylum-seekers. We suggest that this may be understood in terms of the two stereotypical views of asylum-seekers that informed the legislative process. The vulnerable asylum-seeker with special needs seems to have been the vision of the European Parliament.371 Yet, special procedural needs must be demonstrated, and usually there is discretion when applicants seek to escape the harsher procedures designed for the abusers. The vulnerable asylum-seeker may be seen as the exception to the harsher rules in the Directive for the assumed to be abusive applicants. Indeed, the exceptional provisions seem to aim to legitimise harsh procedures: over and again in the Recast, when procedural mechanisms are devised, exceptions are created for the vulnerable. However, to trigger the exception, some procedure is envisaged, often one that will demand procedural dexterity and proof from the asylum-seeker envisaged as less capable of navigating the process than others. The special needs approach seems liable to be ineffective, giving the appearance but not the reality of procedures adapted to real needs. The notion of abuse too remains vague and liable to undermine protection. Not only can we question the utility and efficacy of the resultant procedural proliferation, but we can also doubt whether procedures based on stereotypes assist in identifying those who are in need of international protection. The ­asylum-seeker qua presumptive refugee remains elusive.

371 See for example, European Parliament (n 34) Amendments 13, 16, 56, 74.

chapter 14

Legal Aid for Applicants for International Protection Barbara Mikołajczyk* 1 Introduction It would be a cliché to say that everyone applying for international protection is in an exceptionally difficult situation, but this fact should be constantly repeated, because it is a starting point for any discussion on legal aid for this category of aliens. They reside in a foreign country, away from family and friends, often in unfamiliar surroundings. They very often do not know the language, the customs or the legal system of the State they are in. They are usually poor people who have spent most of their savings on travel expenses. Moreover, they are often people of double or even multiple vulnerability – not only asylum seekers in a foreign country, but also suffering from psychological and health problems. Some of them find themselves victims of various types of violence. At the same time, they must face a procedure that is presently becoming ever more complex. In such cases, frequently requiring some ‘legal engineering’, accessible and professional legal assistance of good quality turns out to be indispensable.1 Undoubtedly, these increasingly complicated procedures constitute a barrier for people seeking protection, but they also pose new challenges for lawyers and organizations providing legal service. In asylum cases, the perfect legal advisor should be an expert not only in domestic and international refugee law, but also in human rights. They should know the administrative and other procedures as well as constitutional law. They should be able to recognize all the cultural nuances and speak many languages to communicate with * Professor, Faculty of Law and Administration, Department of International Public Law and European Law, University of Silesia, Poland. 1 See the judgement of the European Court of Human Rights (ECtHR): pc and S v United Kingdom Appl no 56547/00 (ECtHR, 16 July 2002). In the Court’s opinion: ‘The exceptional technical complexity of the proceedings and of the case as well as the highly emotive nature of the subject matter were reasons for the Court to conclude that, in the absence of the legal representation of the applicants, there had not been effective access to a Court as required by Article 6 § 1 echr’.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004308664_015

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their clients. Such an adviser should also be prepared to conduct a case of torture victims and unaccompanied minors, and should be sensitive to various gender aspects. What is more, they should provide this high quality legal service free of charge, because usually their clients cannot afford a lawyer. Moreover, this type of service faces various practical problems in connection with legal advisors’ access to detained clients or claimants rejected at borders. It seems to be a ‘mission impossible’! Another problem refers to the scope of the notion of ‘legal aid’. Does it cover legal and procedural information, assistance and representation? What do they mean in practice? States interpret the ‘legal aid’ differently, but all of them, in all parts of the world, are rather reluctant to cover the costs of any type of such aid. For example, in 2014, Australian lawyers’ protests were organised when the Immigration Minister announced the end of taxpayer-funded immigration advice to illegal boat arrivals.2 The debate over ways of providing legal services for indigent asylum is also being conducted in the United States of America (usa).3 Obviously, questions over the scope of legal aid, on competences and qualifications of legal aid providers,4 as well as remuneration for their work are posed also in the European Union (eu) Member States.5 Unfortunately, international human rights law does not provide any clear answer on what a State’s positive obligations are in relation to legal assistance for people fleeing persecution, and how it should be organized. It does answer the question of whether and/or under what conditions asylum seekers have the right enjoy free legal assistance. Should a State pay for legal aid, or should it just allow assistance to be provided by pro bono organizations? It is not even clear whether the free legal assistance is an element of a fair trial in procedures 2 K. Murphy, ‘Count the Costs of Refugee Legal Aid “Savings”’ EurekaStreet (Richmond, Australia, 11 April 2014) accessed 15 May 2014. 3 L. Adams and A.Y. Lasker, ‘The Asylum Representation Project and the Leon Levy Fellowship at Human Rights First: An Innovative Partnership to Increase pro bono Representation for Indigent Asylum-Seekers’ (2011) 2 Cardozo Law Review 417–436. 4 It should be remembered that, apart from attorneys, legal advisors and counsellors, various pro bono organizations and students’ refugee law clinics are also very active in this area. Quite often, all these volunteers are better prepared to assists asylum seekers than lawyers who are not specialists in asylum law. See: S. Anagnost, ‘The Challenge of Providing High Quality, Low Cost, Legal Aid for Asylum Seekers and Refugees’ (2000) 4 ijrl 577–588. 5 A. Foryś, ‘Pomoc prawna dla osób ubiegających się o nadanie statusu uchodźcy w prawie międzynarodowym i europejskim oraz w wybranych krajach Europy’ (2013) Instytut Spraw Publicznych, 23–39; K. Bianchini, ‘Legal Aid for Asylum Seekers: Progress and Challenges in Italy’ (2011) 2 jrs 402–403.

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for international protection, which usually, at least at the first instance, is an administrative procedure. These questions have also turned out to be very sensitive on the European Union forum. The following text shows the human rights background for a discussion on the scope and form of legal aid for applicants for the international protection that takes place within the eu, and compares the legal solution adopted between 2003 and 2005 with new eu developments in these areas. 2

International Human Rights Background

As stated above, without competent and free legal information, assistance and representation, asylum seekers and other aliens seeking protection have little chance of enjoying the right to seek asylum laid down in Article 14 of the Universal Declaration on Human Rights and, as a result, to enjoy asylum stipulated in Article 18 of the Charter of Fundamental Rights of the European Union (cfr),6 as well as other human rights, including freedom from torture, degrading or inhuman treatment or punishment, the right to liberty and security of a person, the right to effective remedy, children’s rights, etc. There are also no doubts whether effective (which in practice usually means free) access to a legal advisor increases an alien’s capacity to prove that he or she is really a refugee in the meaning of the Geneva Convention Relating to Status of Refugees of 1951,7 or whether he or she needs the other type of protection, or it allows decisions on detention, expulsion or transfer to another country to be effectively challenged. The United Nations High Commissioner for Refugees (unhcr), in its statements on the right to free legal aid of 20018 and in a document of 2005 entitled Fair and efficient asylum procedures: a non-exhaustive overview stressed that ‘the right to legal assistance and representation is an essential safeguard, especially in complex asylum procedures. It is also important to guarantee free legal assistance and representation in first instance procedures and against negative decisions’.9 6 Charter of Fundamental Rights of the European Union, oj C 364/1, 18 December 2000 (entry into force 1 December 2009). 7 United Nations Convention relating to the Status of Refugees, 189 unts 150, 28 July 1951 (entry into force 22 April 1954). 8 unhcr, Fair and Efficient Asylum Procedures, un Doc. EC/GC/01/12, 31 May 200, para 50(g). 9 unhcr, Fair and Efficient Asylum Procedures: A Non-exhaustive Overview of Applicable Inter­ national Standards, 2 September 2005.

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Paradoxically, the right of access to free legal assistance does not arise directly from the Geneva Convention and its Article 16. Jeremy McBride notes that the Convention does not provide any explicit guarantees concerning access to courts (which is combined with the right to legal assistance exempted from fees) as regards the determination by national authorities of the refugee status. He explains the absence of such a guarantee by the fact that the Convention is dedicated to people with that status, and indicates that Article 16 is understood that there is no breach of the international obligation until the refugee status of a given foreigner is recognized. He stresses that such an interpretation does not help a migrant to obtain effective protection.10 There is also the other (rather rare) interpretation assuming that the exemption from the principle cautio judicatum solvi contained in Article 16(2) of the Geneva Convention refers also to asylum seekers, not only refugees who habitually reside in a given country. This opinion envisages that ‘habitual residence’ does not require recognition of refugee status or a permanent stay, or even a plan to make one’s stay permanent. According to this interpretation, the provision allows States to raise certain requirements for asylum seekers to access free legal assistance.11 Taking into account the declaratory nature of the decision on granting the refugee status and the non-refoulement principle and, finally, the length of procedures of this interpretation should be also taken into account. However, regardless of the interpretation, it is obvious that Article 16 of the Geneva Convention refers only to the right of access to courts and to judicial procedures, and does not refer to procedures before administrative bodies. The asylum procedure is usually an administrative procedure. The possibility of appeal to a court usually appears at later stages of the proceedings, when the administrative decision has been already taken. We do not find in the Geneva Convention any reference (even indirect) to the legal information, assistance or representation provided to a foreigner at moment of their first clash with the authorities of a foreign country, during interview and other procedural steps. Generally, a fair administrative procedure, as well as the legal assistance in this type of proceedings, is crucial for the analysed issue, but at the same time it does not obtain a solid and unambiguous basis not only under the Geneva Conven­ tion but also under the human rights law. Only the Universal Declaration on 10 11

J. McBride, Access to Justice for Migrants and Asylum Seekers in Europe (Council of Europe Publishing 2009) 67–69. See Report by M. Linha and A. Mřkkelgjerd, ‘Analysis of Norway’s International Obligations, Domestic Law and Practice, Detention of Asylum Seekers’ (2014) Norsk Organisasjon for Asylsøkere 47.

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Human Rights does not limit the right to a fair trial to criminal and/or civil proceedings. Its Article 10 states that ‘Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him’. The ‘criminal aspect’ is strengthened here, but this does not mean that the provision is limited only to criminal procedures. Article 14 of the International Covenant on Civil and Political Rights,12 referring to the rights to equality before courts and tribunals and to a fair trial, indicates free legal assistance for the very poor as one of the minimum guarantees, but only in case of ‘the determination of any criminal charge’. Article 14 has traditionally not been associated with administrative procedures, only with criminal proceedings and with a ‘suit at law’. However, a new approach to this question should be noted. The Human Rights Committee, in its General Comment No. 32,13 encourages States to provide free legal aid also in other cases, for those individuals without sufficient means to pay for it. It is a significant progress in comparison with its previous comment on Article 14.14 Moreover, in the Committee’s opinion, the concept of a ‘suit at law’ encompasses equivalent notions in the area of administrative law. The Committee does not mention asylum procedures,15 but it is possible that in future the Committee will go further to expand this interpretation. Finally, it is obvious that the issue of access to free legal aid should be considered in light of the Convention for the Protection of Human Rights and Fundamental Freedoms (echr) and the relevant European Court of Human Rights (ECtHR) case law.16 However, the Court does not interpret Article 6(1) 12 13 14

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International Covenant on Civil and Political Rights, 999 unts 171, 16 December 1966 (entry into force 23 March 1976). un Human Rights Committee, General Comment, No. 32, Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial, un Doc. CCPR/C/GC/32, 23 August 2007. un Human Rights Committee, General Comment, No. 13, Article 14: (Administration of Justice) Equality before the Courts and the Right to a Fair and Public Hearing by an Independent Court Established by Law, un Doc. HRI/GEN/1/Rev.9, 13 April 1984. The Committee indicates the termination of employment of civil servants for other than disciplinary reasons, the determination of social security benefits, the pension rights of soldiers, procedures regarding the use of public land or the taking of private property. In addition, the concept may cover other procedures that ‘must be assessed on a case by case basis in the light of the nature of the right in question’. N. Mole and C. Meredith, ‘Asylum and the European Convention on Human Rights’ (2010) Council of Europe 124–125; ‘Handbook on European Law Relating to Asylum, Borders and Immigration European Union Agency for Fundamental Rights’ (2013) Council of Europe 106–109.

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echr17 as establishing a right to free legal aid as such outside the criminal charge18 or in civil cases where civil rights have been violated. On several occasions, it has found that the absence of free legal aid may lead to a violation of the right to effective access to a court, as guaranteed under Article 6(1), depending on the circumstances of the case,19 but at the same time it indicated that  this provision does not apply to the asylum procedure, which is neither criminal proceedings nor concerns the determination of a civil right or obligations.20 On the other hand, the ECtHR underlines the close ties between various immigration and asylum procedures and the right to effective remedy as stipulated in Article 13 echr. It is ancillary to other provisions that are crucial for asylum seekers – Article 2 (right to life), Article 3 (freedom from torture, inhuman and degrading treatment), Article 8 (right to respect for private and family life) and Article 5 (right to liberty and personal security).21 17

18

19

20 21

‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…’. In Article 6(3) it is stated that: ‘Everyone charged with a criminal offence has the following minimum rights: “to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require”’. See for example judgements in civil cases: in Airey v Ireland Appl no 6289/73 (ECtHR, 9 October 1979), ECtHR found a violation of Article 6(1) because the applicant was unable, in the absence of legal aid and not being in a financial position to meet herself the costs involved, to find a solicitor to assist and represent her in judicial separation procedure; in pc and S v United Kingdom (n 1) ECtHR found a violation of Article 6(1) because the applicants were denied free legal aid in a very complex case; in Steel and Morris v United Kingdom Appl no 68416/01 (ECtHR, 15 February 2005), para 69, ECtHR pointed out that neither sporadic help given by volunteer lawyers nor extensive judicial assistance of judges to the applicants was any substitute for competent and sustained representation provided by an experienced lawyer. Maaouia v France Appl no 39652/98 (ECtHR, 5 October 2000), para 38, Mamatkulov and Askarov v Turkey Appl no 46827/99 and 46951/99 (ECtHR, 4 February 2005), para 82. The judgments in such cases seem to be crucial for the analysed issue, but others, relating to the financial aspects of procedures, are also worth mentioning. For example in the case gr v the Netherlands Appl no 22251/07 (ECtHR, 10 January 2012), paras 46–53, referring to the issue of a residence permit, the Court found a violation of this provision indicating that the requirement to pay statutory charges, which were disproportionate to the applicant’s family income, made the right to an effective remedy not ‘available in practice’. The applicant had to pay eur 830, when monthly income of his family was eur 988.71. The Court found a violation of Article 13 of the Convention.

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The ECtHR, in its jurisprudence, refers to the possibility of obtaining legal information and assistance in the case of the applicant’s detention, in border and accelerated procedures as well as in situations of readmission or transfer to other countries.22 For example, in the case Abdolkhani and Karimnia v Turkey, submitted by applicants who attempted to apply for temporary asylum in Turkey, the European Court of Human Rights pointed out that the lack of real access to legal aid (despite the applicants’ explicit request for a lawyer) resulted in a violation of Article 3 in connection with Article 13.23 In the context of the Dublin procedure, in the case mss v Belgium and Greece, the Court found a breach of Article 3 in conjunction with Article 13 – lack of access to an effective remedy. The ECtHR held that the applicant did not receive any legal information and lacked access to organizations offering legal advice and guidance, as well as the possibility to obtain any paid legal assistance in Greece, where he had been returned from Belgium. Moreover, in assessing the asylum procedure in Greece, the Court recognized it as ineffective, especially in case of vulnerable groups.24 One of the many reasons for its ‘ineffectiveness’ is the lack of a functioning legal aid system, and even the lack of sufficient information about the proceedings, which deprives applicants of the possibility to obtain any legal advice.25 Access to legal assistance was crucial for preserving the right to an effective remedy also in the case ma v Cyprus.26 The complaint was submitted by a detained Syrian Kurd who was intended to be deported to Syria. This issue was also considered in the milestone judgement in the case Hirsi Jamaa v Italy.27 In cases relating to Article 5 of the echr, for example in Duyonov v United Kingdom28 and aa v Greece,29 ECtHR stressed the importance of the language assistance as well as information on the asylum procedure and accessibility to legal aid.

22

23 24

25 26 27 28 29

M. Reneman, ‘Speedy Asylum Procedures in the eu: Striking a Fair Balance between the Need to Process Asylum Cases Efficiently and the Asylum Applicant’s eu Right to an Effective Remedy’ (2013) 4 ijrl 736. Abdolkhani and Karimnia v Turkey Appl no 30471/08 (ECtHR, 22 September 2009), para 114. See also: M. Boyssut, ‘The European Court of Human Rights on a Slippery Slope?’ in S.I. Phlogaitēs, T. Zwart and J. Fraser (eds), The European Court of Human Rights and Its Discontents: Turning Criticism into Strength (Edward Elgar Publishing 2013) 30–31. mss v Belgium and Greece Appl no 30696/09 (ECtHR, 21 January 2011), para 319. ma v Cyprus Appl no 41872/10 (ECtHR, 23 July 2013). Hirsi Jamaa and Others v Italy Appl no 27765/09 (ECtHR, 23 February 2012), para 204. Duyonov and Others v United Kingdom Appl no 36670/97 (ECtHR, 7 November 2000). aa v Greece Appl no 12186/08 (ECtHR, 22 July 2010).

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In the case im v France, the Court found a violation of Articles 13 and 3 of the Convention because the applicant had received unsatisfactory legal and interpreting assistance from the duty lawyer and from the Non-Governmental Organisation (ngo). The Court added that, for detained asylum seekers, the automatic classification of their cases as fast track, the difficultly to gather evidence and the shorter deadlines to claim asylum (five days) and to appeal their deportation orders (48 hours) limited severely their access to domestic remedies.30 However, the Court does not consider such formal requirements without analysis other circumstances. For example, in case kk v France the ECtHR indicated that previously the Iranian applicant had submitted applications in other eu countries, so he was able to formulate his asylum application by himself. In this case the Court did not find a violation of the right to effective remedy.31 Generally, concerning access to free legal advice, the Court is rather more cautious. The general opinion of the Court is that legal aid must be provided if it would otherwise be impossible for an applicant to ensure an effective remedy. In this context, it is worth mentioning the judgement in the case Richard Lee Goldstein v Sweden,32 where the Court found that Article 13 does not guarantee the right to legal counsel paid by the state when availing oneself of such a remedy. According to the ECtHR, in this case the lack of free legal aid paid from State sources did not prevent the applicant from using the remedies at his disposal in Sweden. In the Court’s opinion, the violation of Article 13 may occur when the absence of free legal aid directly prevents the use of the available remedies. It should be also mentioned that the ECtHR jurisprudence is completed by the soft law of the Council of Europe. The issue of access to legal advice in administrative matters has been a subject of the Committee of Ministers’ documents since the mid-1970s.33 They mention the foreigners’ right of access to legal aid, but they usually referred to non-nationals ‘habitually residing’ in the Member States, and they have not listed asylum seekers.34 30 31 32 33

34

im v France Appl no 9152/09 (ECtHR, 2 February 2012), paras 144, 146 and 148. kk v France Appl no 18913/11 (ECtHR, 13 October 2013), paras 69–70. Goldstein v Sweden Appl no 46636/99 (ECtHR, 12 September 2000). Council of Europe, Committee of Ministers, Resolution (76) 5 On Legal Aid in Civil, Commercial and Administrative Matters, 18 February 1976; Council of Europe, Committee of Ministers, Recommendation (81) 7 of the Committee of Ministers to Member States on Measures Facilitating Access to Justice, 14 May 1981. Asylum seekers are not mentioned also in the European Agreement on the Transmission of Applications for Legal Aid, cets No. 092, 27 January 1977 (entry into force 28 February

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The later Council of Europe soft law relating to the discussed issue is in response to the creation of the Common European Asylum System in the European Union and the contemporary challenges of immigration and asylum law. In Recommendation 1645 (2004) on access to assistance and protection for asylum-seekers at European seaports and coastal areas,35 the Parliamentary Assembly was called upon to ensure free and independent legal advice for anyone applying for international protection, and to create a system that guarantees permanent access to independent and professional advice and legal representation in seaports and coastal areas, and to monitor the quality of its functioning. The Assembly also expressed its fears that in these places the effective exercise of the right to appeal may be nullified by expeditious or accelerated procedures that do not allow sufficient time to lodge an appeal, by inadequate information, or by a lack of independent and free legal advice and representation.36 In 2005, the Committee of Ministers adopted Twenty Guidelines on forced return. In guideline no. 5, the Committee stated that, in cases of forced removal and detention, the effective remedy should be accessible. It should be interpreted that, if a foreigner does not have sufficient means to pay for necessary legal assistance, then they should be given it free of charge.37 In the Guidelines on human rights protection in the context of accelerated asylum procedures of 2009, the Committee of Ministers listed the procedural guarantees for various ‘fast track’ procedures. One of them is ‘the right of access to legal advice and assistance, it being understood that legal aid should be provided according to national law’.38 Finally, the Parliamentary Assembly, in its Resolution No. 1707 (2010) on The detention of asylum seekers and irregular migrants, stated that detained foreigners must be guaranteed effective access to free counsel and legal representation, and to free assistance of an appropriate quality.39

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36 37 38 39

1977) and its Additional Protocol, cets No. 179, 4 October 2001 (entry into force 1 September 2002). The Agreement refers only to ‘habitually residing’ foreigners. Council of Europe, Parliamentary Assembly, Recommendation 1645 (2004) on Access to Assistance and Protection for Asylum-Seekers at European Seaports and Coastal Areas, 29 January 2004. See Council of Europe, Parliamentary Assembly, Report of the Committee on Migration, Refugees and Population, Doc. 10011, 29 January 2004. Council of Europe, Committee of Ministers, cm(2005)40 final and Addendum final and CM/Del/Dec(2005)924/10.1. Council of Europe, Committee of Ministers, Guidelines on Human Rights Protection in the Context of Accelerated Asylum Procedures, 1 July 2009. See also the report of the Committee on Migration, Refugees and Population by A.C. Mendoça, Doc. 12105, 11 January 2010.

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Article 18 of the Charter of the Fundamental Rights in the eu,40 containing the right to asylum in the meaning of the Geneva Convention and the New York Protocol is a fundamental provision in the context of legal aid for asylum seekers. However, Article 19 of the cfr should also be taken into account within a debate on access to legal aid. It is obvious that removal is often a result of a decision refusing international protection. The decision could be negative because an applicant had no access to a legal advisor, or the legal advice provided was of low quality. Paragraph 1 of Article 19 prohibits collective expulsions, and paragraph 2 guarantees protection in the event of removal, expulsion or extradition to a State where there is a serious risk that the person would be subject to the death penalty, torture or other inhumane or degrading treatment or punishment. According to the Explanations to the Charter,41 paragraph 1 has the same meaning and scope as Article 4 of Protocol No. 4 to the echr prohibiting collective expulsions. It provides guarantees that every decision in this sphere will be examined, and that no single measure can be taken to expel everyone with the nationality of a particular State. The Explanations expressis verbis state that paragraph 2 of Article 19 ‘incorporates the relevant case-law from the European Court of Human Rights regarding Article 3 of the echr’. Under eu law, Article 47 of the cfr is of fundamental significance for a debate on legal aid for third country nationals seeking protection in the eu. It sets out the right to an effective remedy and to a fair trial. It states: ‘everyone whose rights and freedoms, guaranteed by the law of the Union, are violated, has the right to an effective remedy before a tribunal’. The next part of this provision focuses on the core of the analysed issue. Article 47 contains a guarantee that ‘everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources, in so far as such aid is necessary to ensure effective access to justice’. From Article 47, it arises that the guarantees provided in the cfr are not limited to criminal proceedings, or in some situations to civil proceedings. This provision covers any judicial proceedings, including those conducted before administrative courts. Since the cfr contains the right to asylum as a crucial 40

41

It states ‘The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union’. Explanations Relating to the Charter of Fundamental Rights (2007) oj C 2007 303/02, 14 December 2007.

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element of the eu common asylum policy, all guarantees listed in Article 47 should be applied to asylum cases. It also means also available legal aid should be provided to those who lack sufficient resources.42 It is easy to note that Article 47 combines elements of Article 6 and Article 13 of the European Convention on Human Rights, and makes the access to justice real. This not only follows ECtHR case law and cjeu judgments, but also, according to Article 53 of the Charter, the level of protection guaranteed by Article 47 cannot be lower than that guaranteed by the echr. Indeed, the Court of Justice of the eu has formulated the principle of effectiveness before national courts as a principle of the eu law43 and access to legal aid as its important component. The cjeu pointed out that a national court must consider the subject-matter of the litigation, the applicant’s reasonable prospect of success, the complexity of the relevant law and procedure and, finally, their capacity to represent themselves effectively.44 Finally, it may be assumed that the standard relating to the protection of asylum seekers within the judicial procedure on the basis of the cfr is high. Especially as the Charter, since 1 December 2009, has the same legal value as the Treaty on European Union and the Treaty on the Functioning of the European Union, and that asylum matters are covered by Article 51(1) cfr, stating that the cfr is addressed to Member States ‘only when they are implementing Union law’.45 Unfortunately, from the first meeting with border guards or any other officer, the asylum seeker’s road to court, where they can enjoy all the guarantees, is long and full of legal traps. It happens very often that an asylum seeker, or other foreigner seeking protection, does not have a chance to reach any tribunal where they have a guarantee of being granted free legal assistance and representation. 42 43

44 45

See: E. Guild, ‘The Asylum Seeker’s Right to Free Legal Assistance and/or Representation in eu Law’ (7–9 September 2011) 9th iarjl World Conference: Bled, 6–7. See the case C-222/84 Johnston [1986] 1986, para 18; E. Brouwer, Digital Borders and Real Rights: Effective Remedies for Third-Country Nationals in the Schengen Information System (Martinus Nijhoff Publishers 2008) 307; D. Sinaniotis, The Interim Protection of Individuals before the European and National Courts (Kluwer International 2006) 111–113. In the deb judgement, Case C-279/09 deb [2010] ecr I-13849, paras 59–62. However the case referred to a legal person. Case 617/10 Aklagaren v Hans Akerberg Fransson, ECLI:EU:C:2013:105, paras 17–21, see also:  T. Marguery, ‘European Union Fundamental Rights and Member States Action in eu  Criminal Law’ (2013) 2 Maastricht Journal of European and Comparative Law 284; K.  Lenaerts, ‘Exploring the Limits of the eu Charter of Fundamental Rights’ (2012) 3 European Constitutional Law Review 376.

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3.1 The First Generation of the Common European Asylum System The answer to a question about the eu standard in relation to legal aid for asylum seekers in the whole procedure (not only judicial), should be sought in the legislative measures that are the result of amendments introduced by the Treaty of Amsterdam (Article 63)46 and the Tampere Conclusions of 1999,47 as well as the second generation of the Common European Asylum System (ceas), adopted in 2011 and 2013. A comparison of both asylum packages allows an evaluation of the standard and tendencies achieved in this sphere. The main provisions of the ceas created before 2009, determining the position of an asylum seeker in relation to access to legal aid, are contained in Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status (Procedures Directive),48 Council Directive 2003/9/EC of 27 January 2003 setting out minimum standards for the reception of asylum seekers (Reception Conditions Directive),49 and Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegal third-country nationals (Returns Directive).50 Both Qualification Directives adopted in 2004 and 2011 (recast)51 are ‘jewels in the ceas’s crown’, but they as such do not contain principal provisions relating to legal aid. Similarly, the 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 (Dublin ii),52 did not contain any specific provisions, but should be mentioned here because it gives the 46

47 48 49 50 51

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Treaty of Amsterdam amending the Treaty of the European Union, the Treaties establishing the European Communities and certain related, oj C 340/1, 2 October 1997 (entry into force 1 May 1999). Tampere European Council 15 and 16 October 1999 Presidency Conclusions, paras 13–17. oj L 326/13, 13 December 2005. oj L 31/18, 6 February 2003. oj L 348/98, 24 December 2008. The 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, oj L 304/12, 30 September 2004 and 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), oj L 337/9, 20 December 2011. oj L 50/1, 6 February 2003.

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most visible indication of the metamorphosis in the eu’s approach to the issue of legal aid. Obtaining any compromise during negotiations on the Procedures Directive was a very hard task,53 and the question of legal aid for asylum seekers turned out to be one of the most difficult and sensitive. Two main approaches to the issue arose. The first opted for state-funding, while the second proposed a ‘sufficient resources test’.54 Finally, the solution reached leaves the decision on the variant of legal aid to the Member States’ discretion. They may decide if it will be free legal assistance or paid, and who will provide the assistance. Article 15(1) of the Procedures Directive generally guarantees asylum seekers the opportunity to consult, in an effective manner, a legal advisor or other counsel ‘at their own cost’ on matters relating to their asylum applications. In Article 15(2), the Directive only imposes upon the Member States an obligation  to ensure that free legal assistance and/or representation is granted upon request, ‘in the event of a negative decision by a determining authority’. However, due to the next provision, Article 15(3), Member States have the discretion to introduce considerable limitations on the provision of free legal assistance and/or representation. They may provide that free legal assistance or representation is granted only in judicial procedures before courts and tribunals (so not before administrative bodies) and only once, not in an appeal situation – not for onward appeals or reviews provided under national law, or in cases where an appeal or review is likely to succeed. For the last limit, a specific safeguard has been introduced – the States should ensure that legal assistance and/or representation granted in the latter case is not arbitrarily restricted. Unfortunately, the Directive does not explain how the probability of success should be evaluated, and by whom, and finally, whether the decision in this case is contestable. No guarantees for this procedure have yet been established, meaning that the probability of success of the appeal is assessed before the main proceedings start. Moreover, it is carried out without the participation of the parties and without a separate inquiry. The Member States may also impose time and/or monetary limits on the pro­ vision of free legal assistance and/or representation, or provide that, as regards fees and other costs, the treatment of applicants must not be more favourable than the treatment generally accorded to their nationals. This assumption is fair only from a formal point of view. It should be remembered that asylum seekers and other applicants for international protection are ­usually not in the 53 54

C. Costello, ‘The European Asylum Procedures Directive in Legal Context’ (2006) unhcr New Issues in Refugee Research, Research Paper No. 134, 7. D. Ackers, ‘The Negotiations on the Asylum Procedures Directive’ (2005) 1 ejml 10.

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same situation as nationals, but much worse. The old Aristotelian rule of ‘treat like cases as like’ should be invoked here. Nationals and foreigners seeking international protection are not ‘alike’. They are different and they should be treated differently. Free legal aid for this category of foreigners in need should not be interpreted as a privilege, if even the citizens do not enjoy such a treatment. They may also stipulate that legal assistance and/or representation will be provided only by designated lawyers. Finally, due to Article 15(6), Member States may request full or partial reimbursement of any granted expenses in the situation that the applicant’s financial situation improves considerably, or if the decision on granting such benefits was based on false information supplied by the applicant. This limit may effectively discourage asylum seekers from applying for free assistance. Indeed, it is uncertain what is meant by the ‘considerable improvement of financial situation’ of an asylum seeker. Since an interpretation of this notion is unpredictable, foreigners may be afraid of future invoices. Such prosaic reasons may effectively prevent applicants from submitting requests for any free legal service. Article 16 of the Directive determines the scope of the legal assistance and representation. The Member States are obliged to ensure that a legal adviser or other counsel, admitted as such under national law assisting or representing an applicant, enjoys access to the same information in the applicant’s file as is liable to be examined by the authorities in the appeal procedures. Moreover, a legal adviser or other counsel should have access to closed areas, such as detention facilities and transit zones, for the purpose of consulting applicants. However, this standard is subject to broadly formulated exceptions and limitations. Access to an asylum seeker’s files may be limited in a situation where the disclosure of information or sources would jeopardise: –­ national security, ­– the security of the organizations or person(s) providing the information or the security of the person(s) to whom the information relates, ­– the investigative interests relating to the examination of applications of asylum the international relations of the Member States. Restrictions on access by legal advisors or other counsel to closed areas, including detention centres and transit zones, for the purpose of consulting applicants are possible on similar reasons of national security, public order and, most disputable, administrative management of the area. The last restriction is discretionary and depends on the practical organization of the centre, border point, transit zone, etc.

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It should also be mentioned that the presence of legal advisors or other counsellors at interviews is not indispensable. According to Article 16(4), Member States may provide their own rules on the presence and role of legal advisers or other counsel at all interviews. Moreover, the absence of a legal adviser does not prevent the authorities from conducting a personal interview with the applicant.55 The Reception Conditions Directive of 2003 – another element of the first generation of ceas – should also be taken into consideration. It contains some provisions that directly or indirectly relates to asylum seekers’ access to widely understood legal aid. Under Article 5, the Member States are obliged to ensure that applicants are provided with information on organizations or groups providing them with various types of assistance, including legal advice. Its Article 14(2)(b) states that applicants are provided with the possibility of communicating with legal advisers and representatives of the unhcr and ngos. The same provision, in its Section 7, guarantees that legal advisors or counsels of asylum seekers and representatives of the unhcr or ngos are granted access to accommodation centres and other housing facilities in order to assist the asylum seekers. At the same time, Article 14 contains the possibility of limiting such access on grounds relating to the security of asylum seekers, the centres and other accommodation locations. Moreover, the next section of this provision allows States to introduce, for a reasonable period (as short as possible), certain conditions that may in practice limit lawyers’ or ngos’ access to asylum seekers. Finally, Article 21 obliges the Member States to ensure the possibility of challenging a decision refusing benefits, within the procedures laid down in the national law. This provision is very laconic. It stipulates only that ‘procedures for access to legal assistance in such cases shall be laid down in national law’. The last of the relevant directives – the Returns Directive – sets out common (not minimum) standards and procedures in Member States for returning illegal third-country nationals. Its Article 13 guarantees that a third-country national will be afforded an effective remedy to appeal against or seek a review of decisions related to return, and that they have the possibility to obtain legal advice and representation. Member States are obliged to ensure that free legal assistance and representation is provided at the foreigner’s request and in accordance with relevant national legislation. The Directive refers to Article 15(3) and (6) of the Procedures Directive. So, in the case of return, free legal assistance and/or representation may be provided only in procedures before a court or tribunal, only in cases where the first appeal or review is likely to 55

This exemptions do not refer to unaccompanied minors due to Article 17(1)(b).

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s­ ucceed, only to those who lack sufficient resources, and may be provided by designated advisors or counsel. Finally, an asylum seeker may be asked to reimburse the costs of the provided previously legal aid if their financial situation improves. In Article 16, the Returns Directive also refers to a situation when third-­ country nationals are detained. They must be allowed – upon request – to establish, in due time, contact with legal representatives. Relevant and competent national, international and non-governmental organizations and bodies must be allowed to visit detention facilities. However, such visits may be subject to authorisation. This provision states also that third-country nationals kept in detention must be systematically provided with information explaining their situation, their rights and obligations. Such information must include information on their entitlement under national law to contact the organizations. Although the Returns Directive makes use of the Procedures Directive, it should be remember that it does not really refer to asylum seekers. It only applies to third-country nationals staying illegally on the territory of the Member States. Recital 9 of that Directive excludes asylum seekers from that category, and this was clearly explained by the Court of Justice of the eu in preliminary judgement in the Arslan case.56 However, analysis of the returns procedures only seemingly goes beyond the discussed topic of ‘legal aid for asylum seekers’, because, due to the lack of any legal assistance, or assistance of poor quality, a significant number of not recognized refugees in Europe remain in closed centres waiting for deportation. Quite often, third country nationals waiting for their return share their fate with asylum seekers waiting in detention for transfer to another Member State on the basis of the Dublin mechanism. Despite the ECtHR judgements referring to Article 5(4) of the echr, and the Court’s clear opinion relating to assessments of legal assistance in the situation of the deprivation of liberty,57 some deficiency in legal assistance for detained third country nationals, including asylum applicants covered by the Dublin procedure, is quite common. The ngo reports show many practical difficulties when asylum seekers try to obtain access to legal aid at the border or in detention, or when their claims are examined in accelerated asylum procedures or pursuant to the Dublin ii

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Case 534/11 Mehmet Arslan v Policie čr, Krajské ředitelství policie Ústeckého kraje, odbor cizinecké policie ECLI:EU:C:2013:343, para 49. For example: Duyonov v United Kingdom Appl no 36670/97 (ECtHR, 7 November 2000); sd v Greece Appl no 53541/07 (ECtHR, 11 June 2009); Housein v Greece Appl no 8256/07 (ECtHR, 26 November 2009).

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Regulation.58 According to the reports, most asylum seekers were not informed about the discretionary clauses contained in the Regulation, or such information was provided too late. Many of them had no idea that they could challenge the decision on transfer and, finally, that lawyers were not available at every stage of the process.59 This low and variable standard of legal information and assistance for asylum seekers in transfer procedure arose from the fact that the Dublin ii Regulation 343/2003 was State – oriented and asylum seekers’ rights were severely reduced. Only Article 3(4) states that ‘The asylum seeker shall be informed in writing in a language that he or she may reasonably be expected to understand regarding the application of this Regulation, its time limits and its effects’. This low standard and inconsistency between the Procedures Directive of 2005 and the Dublin ii Regulation arises from the will of the Member States, of course, but it seems also from the fact that the adoption of the first package of the ceas was stretched over time, and the Dublin ii Regulation preceded the guarantees agreed in the Procedures Directive. Therefore, the adoption of whole package of legal acts should be accessed as an advantage. 3.2 The Recast Asylum Package The minimum standard contained in the Procedures Directive allowing States to introduce their own limits and exemptions in this area, coupled with the lack of any norm on legal aid in the Dublin Regulation, has meant that applicants’ chances for access to legal information, assistance and representation are not the same, or even similar, in a particular Member State. Depending on the place of application, asylum seekers are entitled to various forms and levels of legal assistance and representation, provided at different stages by various actors of various quality. Only a limited number of Member States provide free legal representation to all applicants at all stages of the proceedings. Most States limit the state-funded support to the appeal stage, possibly providing legal representation during the asylum interview and appeal only to unaccompanied minors or vulnerable asylum seekers, or to applicants whose applications are processed under special procedures. Moreover, as stated above, an 58

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Amnesty International, The Dublin ii Trap. Transfers of Asylum Seekers to Greece, 2010, 25–26; ecre/elena, Survey on Legal Aid for Asylum Seekers in Europe, 2010, 143–156, Norwegian Organization for Asylum Seekers (noas), Norwegian Helsinki Committee and aitima, Out of the Back Door: The Dublin ii Regulation and Illegal Deportations from Greece, 2009. Jesuit Refugee Service (jrs), Protection Interrupted the Dublin Regulation’s Impact on Asylum Seekers’ Protection (the diasp Project), 4 June 2013, 61–65.

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inadequate level of legal advising has been identified in situations when an applicant is in detention or in speedy or border procedures.60 However, in 2013, some developments with an emphasis on migrants’ rights were identified in most Member States. These developments cover, among others, providing information and counselling centres for third-country nationals and establishment of legal and administrative aid offices.61 The 2007 adoption of the Treaty of Lisbon, and its entry into force in 2009, extorted the modification of the legal framework in asylum policy.62 The idea of ‘constructing a Europe of asylum’63 and establishing a common and unified asylum system providing access to legally safe and efficient asylum procedures for people in need,64 has demanded significant improvements in the adopted secondary legislation. That is why, in 2009, the proposal for a Directive of the European Parliament and the Council on minimum standards on procedures in Member States for granting and withdrawing international protection65 was presented. The possibility of contact with a legal advisor or counsel appeared in its Article 11, stipulating procedural guarantees, although it was Articles 18 and 19 that became the core provisions on legal aid. Article 18 set out the provision of free legal assistance and representation at all stages of the procedure, including in the proceedings before the first instance. The European Commission also proposed the abolition of two of the four restrictions on access to free legal aid. First, an applicant for international protection would be able to obtain free aid 60 61 62

63 64 65

See n 59, European Asylum Support Office (easo), Annual Report on the Situation of Asylum in the European Union, 2012, 67. European Migration Network, A Descriptive Analysis of the Impacts of the Stockholm Programme 2010 to 2013, May 2014, 28. Presently, the tfeu, in its Article 78, requires the adoption of a uniform status of asylum and subsidiary protection, common procedures for granting and withdrawing international protection, common standards on reception conditions and rules on establishing the Member State responsible for examining an asylum application lodged in one of the Member States. See also: European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions Policy Plan on Asylum an Integrated Approach to Protection across the eu, com(2008) 360 Final, 17 June 2008. As stated in Part iv of Council of the European Union, The European Pact on Immigration and Asylum, Doc. 13440/08, 24 September 2008. European Council, The Stockholm Programme – An Open and Secure Europe Serving and Protecting the Citizens, oj C 115/1, 4 May 2010. European Commission, Proposal for a Directive of The European Parliament and of the Council on Minimum Standards on Procedures in Member States for Granting and Withdrawing International Protection (Recast), com(2009) 554 Final, 21 October 2009.

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also in onward appeal proceedings. Second, the Commission proposed to remove the States’ discretion not to provide free legal aid in appeal cases with little likelihood of success. Moreover, the proposal obliged the States to ensure the applicants had access to information on the refugee procedure at border crossings points, in transit zones and detention centres, while also guaranteeing the ngos access to these places. Article 19 expanded the scope of legal aid, by mitigating the limits on legal advisors’ access to the applicants’ files, information and sources, even in the face of restrictions referring to national security. However, such a relatively ‘generous’ proposal turned out to be too difficult for Member States to accept. Since no compromise on that Directive could be reached, the Commission submitted a new proposal of the recast Procedures Directive in 2011.66 This has become the basis for the recast Directive 20013/32/EU on common procedures for granting and withdrawing international protection, adopted on 26 June 2013.67 The Directive is a crucial element of the recast asylum package, which presently also consists of Directive 2013/33/EU laying down standards for the reception of applicants for international protection,68 Regulation 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 (Dublin iii),69 the Eurodac Regulation 603/201370 and Directive 2011/95/EU mentioned above, on standards for the qualification of third-country ­nationals or stateless persons as beneficiaries of international protection adopted in 2011. 66

67 68 69 70

European Commission, Amended Proposal for a Directive of the European Parliament and of the Council on Common Procedures for Granting and Withdrawing International Protection Status (Recast), com(2011) 319 final, 1 June 2011, 4. oj L 180/60, 29 June 2013. oj L 180/96, 29 June 2013. oj L 180/31, 29 June 2013. 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), oj L 180/1, 29 June 2013.

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Articles 19 to 23 of the recast Procedures Directive are the main (but not the only) norms relating to legal aid for applicants for international protection in the second phase of the ceas. First of all, it is clear that the notion of ‘free legal and procedural information’ is pushed to the forefront. Article 19 provides that, in procedures at first instance, Member States must ensure ‘legal and procedural information free of charge, including, at least, information on the procedure in light of the applicant’s particular circumstances’. This information is provided on the applicant’s request and is provided additionally to information clarifying the reasons for the decision and explaining how it can be challenged, as required under Article 11(2) and Article 12(1)(f). However, the rules on free information are not applicable in the case of proceedings on the withdrawal of international protection.71 Moreover, it will be interesting to observe how the Member States will fulfil the obligation contained in Article 19. In practice, the notion of ‘legal and procedural information’ may be interpreted differently. For example, the States’ obligation to provide ‘legal and procedural information’ for anyone seeking protection may be understood as profound information provided in person by a competent advisor, but it may also mean a leaflet with excerpts of relevant legal acts accessible at checking points or at asylum seekers’ camps. The distinction between ‘legal and procedural information’ and ‘legal assistance’ may also turned difficult in practice. Article 20 refers to the next stage of the procedure. It obliges Member States to ensure (upon request) free legal assistance and representation in the appeals procedures. Such assistance and representation should include, ‘at least, the preparation of the required procedural documents and participation in the hearing before a court or tribunal of first instance on behalf of the applicant’. If a State provides free legal assistance and/or representation at the first instance, the provision on legal information is not applied. Moreover, Article 22 provides that the legal assistance and representation be guaranteed to applicants at their own expense at all stages of the procedure. Applicants are to be given an opportunity to consult in an effective manner with a legal adviser or other counsel, as well as non-governmental organizations. It means that the obligatory standard of legal aid consists of three elements: free legal information at the first instance, free legal assistance and representation in case of appeal (both provided on applicant’s request), as well access to paid legal aid throughout the procedure. Article 23 of the Directive determines the scope of legal assistance and representation. According to this provision, Member States are obliged to allow a 71

Article 45(4).

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legal adviser or counsel enjoy access to the information contained in an applicant’s file upon the basis of which a decision is or will be made. Moreover, advisors who assist or represent applicants should have access to closed areas, such as detentions and transit zones. The conditions of their access to these areas are indicated in the recast Reception Directive in Articles 10(4) and 18(2) (b) and (c). Moreover, an applicant can bring his/her legal adviser or counsel to the personal interview, but a Member State may allow for the advisor’s intervention only at the end of the personal interview. The personal applicant’s presence at the interview may be required even in case they have their own legal advisor or counsel. On the other hand, the absence of a legal adviser/counsel cannot prevent the authority from conducting a personal interview with an applicant. However, the real scope and level of legal aid for third country nationals applying for international protection, as determined by the recast Directive 2013/32/EC, may be identified, as in case of its predecessor, only after analysing the principal exemptions and limitations of such aid, that can be imposed by the Member States. With the first limits of the free legal aid, an applicant may be confronted already at the border. Article 8 of the Directive refers to providing information and counsel in detention facilities and at border crossing points, but it allows possible limits to be introduced due to national security, public order or administrative management of the crossing points. In particular, the notion of ‘administrative management’ may be understood in various manners. Here, like in case of the Directive of 2005, the discretionary power of the relevant authorities is significant. For the same reasons, the legal advisor’s or counsel’s access to the applicant’s files may be restricted. The scope of the legal aid may also be restricted when their disclosure may jeopardise the security of the organizations or individuals providing the information, the security of the individuals to whom the information relates, or investigative interests relating to the examination of applications and international relations of the Member States. In such cases, the Member States should take steps guaranteeing the applicants their right of defence.72 At the first and second instances, the access to procedural and legal information, legal assistance and representation may be limited by conditions contained in Article 21. Member States may decide on granting free legal and procedural information and free legal assistance and representation only to those who lack sufficient resources, and only once in the appeal procedure 72

Article 23.

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before the court of the first instance. Like in the Directive of 2005, they may also introduce monetary and/or time limits, though these cannot arbitrarily restrict access to the provision of legal and procedural information and legal assistance and representation. The recast Directive does not follow the proposal of 2009, abolishing the possibility not to grant free legal assistance and representation in cases with a small probability of success of the appeal. The merits test at the appeal stage has been retained in Article 20. Its Section 3 states that ‘Member States may provide that free legal assistance and representation not be granted where the applicant’s appeal is considered by a court or tribunal, or other competent authority, to have no tangible prospect of success’. Indeed, a new possibility of ‘not granting’ the free legal aid has appeared. It relates to applicants who are no longer present in a given Member State.73 The recast Directive maintained others tools indicated in the Directive of 2005, which in practice may prevent applicants from submitting a request for free legal information, assistance and representation. For example, Member States may provide that the free of charge legal and procedural information referred to in Article 19 is provided not only by non-governmental organizations, but also by professionals from government authorities, or from specialised services of the State. Asylum seekers escaping from persecution may simply do not trust any State services. They are not independent. As previously, the Member States may also provide that, as regards fees and other costs, the treatment of applicants should not be more favourable than the treatment generally accorded to their nationals in matters pertaining to legal assistance. The idea of demanding the reimbursement of some or all costs previously granted has also been maintained in the new Directive. In addition, Member States may lay down their own rules concerning the methods of filing and processing requests for free legal and procedural information, assistance and representation. In this case, a simple question should be posed: who and how should inform a foreigner how to fill out and submit an application requesting free legal and procedural information, assistance and representation? In this case, information on how to obtain information is needed! As stated above, the provisions on legal aid of the recast Procedures Directive are very detailed, but it does not mean that they are more precise. They leave States a lot of discretion in introducing their own modalities, exemptions and limits. It will be possible to assess how they use their discretionary power after the transposition of the Directive. The provisions relating to legal aid should be transposed by 20 July 2015. 73

This prerequisite refers to Article 41(2)(c) of the Directive.

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The same deadline refers to the recast Reception Conditions Directive 2013/33/EC, which also contains some new solutions directly or indirectly affecting the applicants’ possibilities of obtaining legal aid. Firstly, Article 5 should be taken into consideration. This obliges Member States to ensure that applicants are provided with information on organizations or groups of individuals that provide specific legal assistance. Secondly, Article 9 seems to be extremely important in the discussed area, because it extends the reception conditions to detained applicants.74 According to this Article, applicants in detention must immediately be informed of the reasons for their detention and the procedures laid down in national law for challenging the detention order, as well as of the possibility to request free legal assistance and representation. Such assistance and representation must be provided by suitably qualified individuals, as admitted or permitted under national law, whose interests do not (even potentially) conflict with those of the applicant. Article 10, referring to the conditions of detention, in its Section 4 obliges States to ensure the possibility to communicate with unhcr, ngos and legal advisors in conditions respecting the applicants’ privacy. Moreover Article 26 of the recast Reception Conditions Directive allows an applicant to appeal not only the decision refusing the reception conditions but also they may challenge the decisions on withdrawal or their reduction. So, the appeal is not limited only in cases where benefits are refused, as it is guaranteed in Article 21 of Directive 2003/9/EC. In the case of an appeal, Article 26 obliges States to make free legal assistance and representation available at an applicant’s request, if such an aid is necessary to ensure effective access to justice. It is demanded to ensure at least the preparation of the required procedural documents and participation in the hearing before the judicial authorities on behalf of an applicant. The new Reception Conditions Directive allows States to introduce limitations, exemptions and restrictions in access to detained applicants that are similar to the recast Procedures Directive. Finally, the new Regulation Dublin iii should be taken into account. It entered into force in January 2014. Steve Peers has observed that the recast is not a ‘significant attempt to rethink the fundamentals of the Dublin system, even though it has led to significant human rights abuses’.75 While it may be true that the recast does not, in general, introduce fundamental changes of the Dublin system, it must be admitted that, in terms of access to information and legal assistance, the changes are visible. As stated above, the Regulation Dublin ii did not contained any references to applicants’ access to any form of legal aid. 74 75

See Article 28(4) of the Regulation Dublin iii. S. Peers, ‘The Dublin iii Regulation: What Will be Different?’ (2014) 28 Journal of Asylum and Nationality Law 50.

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In the new Regulation, the first indirect reference is placed in its preamble.76 It invokes Article 47 of the crf and states that the legal safeguards and the right to an effective remedy should be established towards asylum seekers transferred to other Member State, which is responsible for considering asylum applications. It may be observed that the further provisions of the Regulation presume that individuals in the Dublin procedure enjoy assistance from a legal advisor or counsel. The relevant procedures for access to legal assistance are be set up by Member States in their in national law.77 Article 5 contains a guarantee that the determining Member State will organise a personal interview with an applicant and, most importantly, that an applicant and/or their legal advisor or counsel have timely access to its summary. Article 26 provides possibility of reporting a transfer decision to a legal advisor or other counsel representing an applicant. If an applicant is not assisted or represented by a legal advisor or counsel, they should obtain information on the main elements of the decision and information on the legal remedies. Finally, if an applicant for international protection decides to challenge the decision on transfer, then according to Article 27(5) Member States must ensure that they have access to legal assistance. Indeed, Member States must ensure that free legal assistance is granted upon request, if the person concerned is not able to cover the costs of assistance. However, as in case of the Procedures Directive, the Member States may introduce limits in this area. As regards fees and other costs, the treatment of applicants should not be more favourable than the treatment generally accorded to their nationals, and free legal assistance need not be granted in situations where the authorities assess that the appeal or review have no tangible prospect of success. Article 27 stipulates also the scope of legal assistance, which includes at least the preparation of the required procedural documents and representation before a court or tribunal. At the same time, this provision allows States to restrict legal services only to legal advisors or counsels specifically designated by national law to provide assistance and representation. 4 Conclusions Concluding, it may be stated that the issue of granting asylum seekers (and other individuals seeking protection) access to effective (i.e. free of charge) legal aid may be called ‘Cinderella of international protection’. Firstly, international law does not contain any provision clearly guaranteeing access to free legal aid for 76 Dublin ii Regulation, para 19. 77 Article 27.

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individuals seeking protection outside his/her country. Secondly, access to legal aid is deeply hidden in the right to effective remedy and needs a broad interpretation to be identified. It usually appears in national and the international laws in the context of an appeal to a court, but rarely earlier – at administrative stages of proceedings, in border and speedy procedures. Finally, despite the first signs of future changes, which may be found in soft law and in jurisprudence, there is still a strong opinion that asylum procedures are not covered by the rules guaranteeing fair criminal and in some cases civil proceedings. That is why introducing the possibility to obtain the free legal advice upon request, set out in the Asylum Procedures Directive of 2005, has been recorded in the world,78 but it does not mean that the adopted solution has turned out to be effective, and has contributed significantly to an improvement of the fair asylum procedures in the eu Member States. The Directive has permitted States to apply various restrictions and modalities, which has resulted in inconsistent standards in area of access to legal aid for asylum seekers, and varying quality. The entry into force of the Treaty of Lisbon, and work on the second generation of the ceas, had led to expectations of new legal solutions meaning that the legal aid would be better accessible for third country nationals seeking protection in the eu, and that they would create a real common standard in this area. Progress may be identified in the case of the Regulation Dublin iii which, in comparison with its predecessor is much more oriented towards human rights. Here, a third country national has a chance of being informed, of enjoying the reception conditions and of applying for free legal assistance and representation in the case of an appeal or a revision of a decision on transfer. However, the solutions adopted in the recast Procedures Directive have turned out to be disappointing. Analysing the Directive, it is clear to see that progress is rather illusionary. The specifics of legal information, legal assistance and representation, as well as the shifting point of gravity from paid legal assistance and representation to free legal services could have been recognized as an improvement, but in fact the change is minor. The recast Directive allows States to introduce the same limits and restrictions as contained in the Directive of 2005. What is more, it allows new ones to be added. As a result, the level of safeguards with regards to free legal assistance remains the same, or is even reduced.79 For the same reasons, a common standard of legal aid for applicants for international protection may never be achieved.

78 79

See, for example: M. Panezi, ‘2005 Asylum Procedures Directive: Developing the European Asylum Law’ (2007) 13 Columbia Journal of European Law 509. S. Peers, ‘The Second Phase of the Common European Asylum System – A Brave New World or Lipstick on a Pig?’ (2013) Statewatch Analysis No. 220, 12.

Part 6 Conclusion

∵

chapter 15

Building the Common European Asylum System beyond Legislative Harmonisation: Practical Cooperation, Solidarity and External Dimension* Philippe De Bruycker** and Evangelia (Lilian) Tsourdi*** 1

Introduction: Is a Common European Asylum System in Place?

Given the critical analysis presented in the contributions of this volume, there is room for improvement in order to establish a Common European Asylum System (ceas). Even if the full level of the European Union’s (eu) ambition did not materialise, one should, however, not lose sight of the potential of eu’s protection system. Examined macroscopically, the ceas is an advanced regional protection framework, both legislatively and policy-wise, that has the potential to influence the international refugee protection regime.1 Member States have sought to devise concrete mechanisms to allocate responsibility and they have elaborated detailed norms in areas that are not covered by the 1951 Refugee Convention, such as reception conditions and asylum procedures. The institutional framework of the eu provides a Court of Justice which is tasked with authoritatively interpreting the common norms, in an area where there is no ‘international refugee Court’. Member States have also managed to move from ad-hoc support and exchanges of good practice to the institutionalisation of practical cooperation efforts, by creating a dedicated eu agency. Finally, they have begun to coordinate their actions externally in an effort mainly to manage, as much as that is possible, migration flows and to build protection capacity in third countries.

*

This article covers legal and policy developments up to August 2015 and was typeset before the issuance of the majority of the proposals and adoption of legislation on relocation of asylum seekers between Member States. ** Professor, Migration Policy Centre (mpc), European University Institute, Firenze; Institute for European Studies & Law Faculty, Université libre de Bruxelles (ulb); Jean Monnet Chair for Immigration and Asylum Law of the European Union. *** PhD Candidate, Université libre de Bruxelles (ulb); Research associate, Migration Policy Centre/European University Institute (eui) and Centre Charles De Visscher pour le droit international et européen (CeDIE), Université catholique de Louvain (ucl). 1 See in this sense H. Lambert, J. McAdam and M. Fullerton (eds), The Global Reach of European Refugee Law (cup 2013). © koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004308664_016

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Nevertheless, the eu’s asylum system is riddled by factors that hold back its development. First of all, the responsibility-allocation mechanism that has been devised fails to share responsibility equitably between Member States, while largely disregarding the realities faced by protection seekers and their preferences. More broadly, no objective discussion of what is a fair share of responsibility has ever taken place. This creates disincentives: on the one hand, for Member States to realise the obligations they have undertaken legislatively, on the other, for protection seekers to abide by the rules, which do not take into account their links to specific Member States. Beyond the legislative and policy framework, the differentiated level of economic and social development between Member States and the varying levels of investment in their asylum systems, have led to widely diverging recognition rates and reception conditions. This has undercut the objective of curbing secondary movements between Member States; on the contrary it has fuelled them. Finally, eu’s external asylum dimension remains underdeveloped and is disproportionately focused on capacity building, while offering meagre opportunities for legal entry to protection seekers. On the contrary, the various measures eu has taken as part of its external border control or visa policies have stifled access to protection and have lead asylum seekers to risk their lives in order to reach the eu territory. The impact of these policy choices is witnessed more vividly than elsewhere, in the loss of life in the Mediterranean Sea. This closing report, first, retraces the realisation that eu’s envisaged common system would need more than enhanced legislative harmonisation to reach its full potential and examines the different stages of this evolution. It then undertakes a critical assessment of the development of the building blocks of the ceas other than legislative harmonisation, namely: practical cooperation, solidarity and fair-sharing of responsibility as well as the system’s external dimension. It comments on how the promise of the creation of a ceas could be further pursued, including on how to address current shortcomings. The perspectives are based both on legislative and policy initiatives that have been announced by the eu institutions, but also on the authors’ personal assessment. 2

The Evolution of the Common European Asylum System beyond Legislative Harmonisation

In the introductory report to this volume, Vincent Chetail aptly and critically examines the incremental development of ceas, focusing his analysis mainly on legislative harmonisation.2 We complement this analysis, by 2 See in this volume, V. Chetail, ‘The Common European Asylum System: Bric-à-brac or System’?

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focusing on elements that gradually gained prominence when it became apparent that harmonisation alone would not be enough to bring about the end objective of ‘a common asylum procedure and a uniform status valid throughout the eu’.3 Practical cooperation and enhanced intra-eu solidarity were developed as additional means to counteract the gaps and inconsistencies that the implementation of the first generation asylum instruments revealed. Parallel to that, further possibilities of joining forces in the asylum area arose. Next to the ‘inward-focused’ motivation of establishing a common asylum system in order to curve secondary movements of protection seekers that had reached the eu territory, ‘outward looking goals’ were added. These were coordinating action in order to have strategic impact externally, collaborating with third countries in the management of migration flows and, marginally, improving the possibilities of legal access to the eu for international protection seekers. This section retraces the development of the elements of the ceas other than legislative harmonisation, taking as landmarks the first three multi-annual programmes in the area of Freedom, Security and Justice, as they were expressed in the Tampere, The Hague and Stockholm European Council Conclusions. The ‘Other Pillars’ of the Common European Asylum System: Timid Beginnings (1999–2004) During this first stage of development of eu’s asylum policy, the bulk of efforts were concentrated on legislative harmonisation and adoption of the relevant instruments. This was logical and understandable, to a large extent, given that harmonisation was a sine qua non starting point for building a ceas. A general legal basis existed in the Treaty on the European Community (tec) calling for the adoption of measures in this area in order to ensure ‘cooperation between the relevant departments of the administrations of the Member States’.4 However, practical cooperation in the asylum policy, was not mentioned per se in the Tampere Conclusions. A ‘solidarity-related’ provision was also included in the tec. Article 63(2) called for the adoption of measures on ‘refugees and displaced persons’, also in the area of ‘promoting a balance of effort between Member States in receiving and bearing the consequences of receiving refugees and displaced persons’.5 On the basis of this provision, the eu established a European Refugee Fund6 and

2.1

3 Tampere European Council, Presidency Conclusions, 15–16 October 1999. 4 See tec, Article 66. 5 tec, Article 63(2)(b). 6 See Council Decision of 28 September 2000 establishing a European Refugee Fund (2000/596/ EC), oj L252/12.

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included a set of responsibility-sharing arrangements within eu’s Temporary Protection Directive.7 The latter foresees both financial support for the Member States through eu funding, and a process by which to regulate the transfer of persons who are eligible for temporary protection.8 The rest of the asylum instruments adopted in that period contained no equivalent provisions for the transfer of persons, neither in what concerned asylum seekers,9 nor in what concerned recognised beneficiaries of international protection.10 The Dublin Regulation allocated responsibility on the basis of a set of criteria but no mechanism was foreseen to alleviate pressure when the application of these criteria led to an unequal distributive effect.11 The Qualification Directive, on the other hand, did not establish freedom of movement rights for recognised beneficiaries, neither did it foresee any other mechanism of internal relocation. Regarding the external dimension of the system, the preamble of the Tampere Conclusions made reference to the issue of access to the territory ‘for those whose circumstances lead them justifiably to seek [it]’, but did not set out more details.12 There was also a paragraph on ‘partnership with countries of origin’, which mainly focused on combating the root causes of forced migration. It did, however, stress that the Union and the Member States were invited to contribute within their competence towards ‘a greater coherence of internal and external policies of the Union’.13 The text also covered the ‘management of migration flows’ without any indication on safe access to protection or capacity building in third countries.14 7

8 9

10

11 12 13 14

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 L212/12 (Temporary Protection Directive). See Temporary Protection Directive, Articles 24–26. See 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, oj L50 (Dublin Regulation). 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, oj L 304 (Qualification Directive). See also in this volume the contribution of F. Maiani, ‘The Dublin iii Regulation: A New Legal Framework for a More Humane System’. Tampere European Council (n 3) para 3. Ibid paras 11–12. It did lead though to the integration of immigration policy into the Union’s relations with third countries; see in that sense example P. De Bruycker and A. Weyembergh, ‘The

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A few years later, the United Kingdom (uk) government presented to its eu counterparts policy proposals on extraterritorial processing concerning both asylum seekers en route to the eu and those that had already reached eu territory, in so-called ‘transit processing centres’.15 Moreover, it proposed to set up ‘regional protection areas’ in regions of origin, combining capacity building and resettlement. The first part of the uk proposals in particular, was met with scepticism by eu governments and civil society and raised several legal and practical difficulties.16 During the same year, the United Nations High Commissioner for Refugees (unhcr) presented Member States its ‘Three-Pronged’ proposal including strengthening access to protection in regions of origin, and joint eu processing of asylum applications for selected caseloads.17 In response to these initiatives, the Commission presented its own new approach to asylum that contained channels to access protection in the eu.18 It contemplated three particular avenues: a unhcr-steered Comprehensive Plan of Action allowing resettlement of a specific case-load of refugees in a protracted refugee situation; an eu-wide resettlement scheme and, finally, the facilitation to set up protected Entry Procedures, preferably eu-wide.19 No concrete joint actions were immediately adopted on the basis of the aforementioned policy proposals. They did plant the seeds though for future developments. The ‘Other Pillars’ of the Common European Asylum System: Gaining Importance (2004–2009) The Hague Programme, adopted in 2004, underscored the political realisation that it would be necessary to develop further elements in order to meet the expectations of creating a cogent and effective ceas. Regarding practical cooperation, it foresaw the establishment of ‘appropriate structures’ that would

2.2

15

16

17 18 19

External Dimension of the European Area of Freedom, Security and Justice’, in M. Telo (ed), The European Union and Global Governance (Routledge 2009) 212–216. uk Government, New International Approaches to Asylum Processing and Protection, 10 March 2003 accessed 15 May 2015. See for Amnesty International, Unlawful and Unworkable: Extraterritorial Processing of Asylum Claims, (ai, 2003), Doc. No. ior 61/004/2003; Refugee Council, Unsafe Havens, Unworkable Solutions, May 2003 accessed 15 May 2015. unhcr, unhcr Working Paper on ‘unhcr’s Three-Pronged Proposal’, 26 June 2003; unhcr, Agenda for Protection, 3rd edition, October 2003. See European Commission, Towards More Accessible, Equitable and Managed Asylum Systems, com(2003) 315. Ibid para 6.1.2.

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facilitate ‘practical and collaborative cooperation’ between the Member States, in areas such as the compilation and assessment of country of origin information and addressing particular pressures in the reception and asylum procedures systems of different Member States.20 However, this was only the envisaged first step. These structures were to be gradually transformed to ‘a European support office for all forms of cooperation between Member States relating to the ceas’.21 In order to achieve the call of the Hague Programme, the Commission proposed, in the short-term, the establishment of a particular structure, an asylum co-operation network managed by the Commission.22 In the long-term, and as practical co-operation would expand, it foresaw that demands would exceed the capacities of such a mechanism, and thus the creation of a dedicated Support Office would be necessary.23 This perspective was largely ­re-affirmed by the Council of the European Union in its European Pact on Immigration and Asylum.24 At this stage, practical co-operation activities were mainly pursued through eurasil, a eu network for asylum practitioners chaired by the Commission25 that replaced the cirea26 chaired by the Council. In addition, the 2004 Dutch Presidency oversaw the establishment of annual exchanges between General Directors of European Immigration Services (gdisc) and of a network to facilitate practical co-operation.27 A number of projects supported by eu cofinancing were developed under the auspices of gdisc. One such project was the European Asylum Curriculum (eac), originally developed by a group 20

Council of the European Union, Presidency Conclusions: Annex i-The Hague Programme: Strengthening Freedom, Security and Justice in the European Union, Brussels, 5th November 2004, Doc. 14292/04, para 1.3. 21 Ibid. 22 European Commission, Communication on Strengthened Practical Co-operation: New Structures, New Approaches: Improving the Quality of Decision-Making in the Common European Asylum System, com(2006) 67, Brussels, 17th February 2006, 3. The main areas established by the Hague Programme are the achievement of a single procedure for the assessment of asylum applications, the collection, organisation, assessment and presentation of coi, and addressing particular pressures on the asylum systems and reception capacities of certain Member States. 23 Ibid 8. 24 See Memorandum from the Presidency of the European Union to the Council of the European Union, European Pact on Immigration and Asylum, 13440/08, 24 September 2008, 11. 25 European Commission, Green Paper on the Future Common European Asylum System, com(2007) 301, 9. 26 Centre for Information, Discussion and Exchange on Asylum. 27 This initiative is called General Directors of Immigration Services Conference (gdisc).

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of Member States lead by Sweden with the financial support of the European Commission and in cooperation with the Odysseus Academic Network. Its main aim was to ‘create a learning tool for the advancement of both knowledge and skills among officials working with asylum issues’.28 Member States also undertook other bilateral or multilateral practical cooperation initiatives that led, for example, to the creation of a ‘Temporary Desk on Iraq’. This was an intergovernmental 18-month project funded by the erf that sought to analyse data and exchange practices in areas ranging from the processing of asylum applications to effecting return or undertaking resettlement regarding the caseload of Iraqi asylum seekers.29 In what concerns solidarity and fair-sharing of responsibility, the Hague Programme stressed that the second phase of development of the ceas should ‘be based on solidarity and fair sharing of responsibility including its financial implications’.30 The Temporary Protection Directive was not activated in this period, although considerations on its application arose regarding the case of Iraqi asylum seekers.31 However, such discussions were brief since the potential grant of temporary protection was perceived to create a ‘pull factor’.32 The Commission expected the application of the first generation instruments and the onset of practical cooperation efforts to ‘go some way to enable Member States to respond better to particular pressures situations’.33 In terms of financial solidarity, the erf was amended in 2007, to allow for the implementation of emergency measures, apart from cases where temporary protection mechanisms had been activated, to ‘situations of particular pressure’.34 Moreover, it included in its purview the financing of potential intra-eu relocation of either 28 29

30 31

32

33 34

See European Asylum Curriculum, A Vocational Training Programme for the Asylum Process in Europe: Objectives and Content, 6. A. Papadopoulou, B. Treviranus, T. Moritz and C.M. Fandrich, Comparative Study on the Best Practices for the Integration of Resettled Refugees in the eu Member States (European Parliament 2013) 15. The Hague Programme (n 20) para 1.2. See for example, M. Sperl, ‘Fortress Europe and the Iraqi “Intruders”: Iraqi Asylum-Seekers and the eu 2003–2007’ (2007) unhcr New Issues in Refugee Research, Research Paper No. 44, 14. A. Klug, ‘Regional Developments: Europe’ in A. Zimmermann et al. (eds), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (oup 2011) 133. New Structures, New Approaches (n 22) 7. See Decision No. 573/2007/EC of 23 May 2007 establishing the European Refugee Fund for the period 2008 to 2013 as part of the General programme ‘Solidarity and Management of Migration Flows’.

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asylum seekers or beneficiaries of international protection.35 Nevertheless, no initiatives of intra-eu relocation took place during the period in question. Regarding the Dublin system, the Commission noted in its Green Paper that it ‘was not devised as a burden sharing instrument’ and that it ‘may de facto result in additional burdens on Member States that have limited reception and absorption capacities and that find themselves under particular migratory pressures because of their geographical location’.36 These concerns were not reflected in the Commission’s 2007 evaluation of the Dublin Regulation.37 However, they formed the basis of the Commission’s proposal to introduce a procedure to suspend the functioning of the Regulation in cases of urgency which place an ‘exceptionally heavy burden’ on a Member State’s reception and asylum processing capacity or when the Commission considered that circumstances prevailing in a Member State’s asylum processing or reception system were not in conformity with Community legislation.38 Regarding the system’s external dimension, it was the Hague Programme that officially launched common action. Despite acknowledging the need to ‘contribute in a spirit of shared responsibility to a more accessible, equitable and effective international protection system in partnership with third countries’, the emphasis was placed on capacity building of third countries’ asylum systems and accessing protection in the regions of origin.39 Member States also formulated their desire for third States to take partial responsibility for managing migratory flows; although this desire was not new, it was the first time it was given such an important place in a Union’s work program.40 Despite the European Council deploring ‘the human tragedies that took place in the Mediterranean as a result of attempts to enter the eu illegally’,41 it did not propose concrete measures to allow legal entry of refugees to the eu territory. The objective of the Hague Programme in the field of the external dimension was therefore two-fold: the enhancement of protection capacity in regions of origin and the management of migration flows. In order to realise 35 36 37 38

39 40 41

See Decision No. 573/2007/EC, Recital 19 and Article 3(1)(e). Green Paper (n 25) 10–11. See European Commission, Report on the Evaluation of the Dublin System, com(2007) 299. See European Commission, Proposal for a Regulation 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, com(2008) 820, Article 31. The Hague Programme (n 20) para 1.6. Study for the European Parliament, C. Rodier, Analysis of the External Dimension of the eu’s Asylum and Immigration Policies (European Parliament 2006) 6. The Hague Programme (n 20) para 1.6.

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this mandate, the eu instated Regional Protection Programmes (RPPs) consisting of a ‘tool box’ that would be mainly protection-oriented, however, cooperation on legal migration, actions on migration management and return were also to be included in the range of measures under eu financing.42 The implementation of the first two rpps began in 2007 in the Great Lakes area (Tanzania) as a region of origin and the Western nis (Ukraine, Moldova, Belarus) as a region of transit. The Hague Programme also called for the establishment of ‘a joint resettlement programme for Member States willing to participate’ in the framework of operation of rpps. The ambition to realise a Joint eu Resettlement Programme (jerp) was not accomplished in this period. Resettlement, both from ‘rpp regions’ and other regions, was undertaken though by individual Member States on the basis of national programmes. Funding to support such efforts was available through the erf.43 The ‘Other Pillars’ of the Common European Asylum System: Equally Foundational (2009–2014) The Stockholm Programme reflects the realisation that practical cooperation, solidarity and the external dimension constitute fundamental pillars of the system and that their development is crucial to achieving its effective establishment. Regarding practical cooperation the Programme stated that:44

2.3

[t]he easo will be an important tool in the development and implementation of the ceas and should contribute to strengthening all forms of practical cooperation between the Member States. Therefore the Member States should play an active role in the work of the easo. It should further develop a common educational platform for national asylum officials, building in particular on the European Asylum Curriculum (eac). Enhan­cing the convergence and ongoing quality with a view to reducing disparities of asylum decisions will be another important task. 42

43

44

European Commission, Communication of the European Commission on the managed entry in the eu of persons in need of international protection and the enhancement of the protection capacity of the regions of origin, ‘improving access to durable solutions’, com(2004) 410, 18–19. See Decision No. 573/2007/EC of 23 May 2007 establishing the European Refugee Fund for the period 2008 to 2013 as part of the General programme ‘Solidarity and Management of Migration Flows’, Recitals 16, 18, 26 and 27 as well as Article 3(1)(d), 3(5), 6(e) and 13(3). European Council, The Stockholm Programme – An Open and Secure Europe Serving and Protecting the Citizens, oj C 115/1, 4 May 2010, para 6.2.1.

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The institutionalisation of practical co-operation efforts did in fact come to fruition in 2010 through the adoption of the agency’s founding regulation.45 The agency, whose seat is in Malta, Valetta, became operational on February 2011. Three main areas of activity are currently covered by the agency.46 The first is the development of practical cooperation among eu Member States. The main focus is placed on gathering and exchanging country of origin information (coi) and the adoption of a common coi methodology,47 intrinsically linked with credibility assessment. Moreover, the agency provides training for asylum officials on the basis of the European Asylum Curriculum (eac) model.48 The second is that of support towards eu Member States under particular pressure,49 a function that makes the easo akin to an instrument of solidarity. The final area of the agency’s involvement is the contribution to the development of ceas undertaken through the exchange of information concerning the implementation of instruments of the Union asylum acquis50 and the publication of additional documents. Apart from easo, the Stockholm Programme invited the Commission to ‘finalise its study on the feasibility and legal and practical implications to establish joint processing of asylum applications’. A study outlining the characteristics and implications of different models was prepared on behalf of the Commission in 2013.51 It explored different options varying from forms of external assistance to national processing systems coordinated by easo, to a completely harmonised, eu-based approach for joint processing of asylum applications within the eu.52 In what concerns the principle of solidarity and fair sharing of responsibility, the Lisbon Treaty strengthened it53 by introducing a new Article 80 tfeu stating that: 45

Regulation (eu) No. 439/2010 of 19 May 2010 establishing a European Asylum Support Office, oj L 132/11. 46 In this section, we outline the areas of activities, while below we critically assess them. 47 See easo Regulation, Article 4 and easo Country of Origin Information Report Methodology, July 2012. 48 easo Regulation, Article 6. 49 easo Regulation, Articles 8–10. 50 easo Regulation, Article 11. 51 See H. Urth, M. Heegaard Bausager, H.-M. Kuhn, J. Van Selm, Study for the European Commission on the Feasibility and legal and practical implications of establishing a mechanism for the joint processing of asylum applications on the territory of the eu (ec 2013). 52 Ibid. 53 See on this point also, D. Vanheule, J. Van Selm and C. Boswell, Study for the European Parliament: The Implementation of Article 80 tfeu – On the Principle of Solidarity and Fair

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[t]he policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications between the Member States. Whenever necessary, the Union acts adopted pursuant to this Chapter shall contain appropriate measures to give effect to this principle. The Stockholm Programme also emphasises the importance of this principle stating that the ceas should be ultimately ‘a common area of protection and solidarity’.54 However, rather than calling for the establishment of a mechanism that could permanently allocate responsibility in an equitable manner on the basis of objective criteria, it endorsed an approach of ‘effective solidarity with the Member States facing particular pressures’.55 To this end, the development of mechanisms of ‘voluntary and coordinated sharing of responsibility between the Member States’ were foreseen to ‘support each other in building sufficient capacity in their national asylum systems’, envisaging a central role for easo in such exercise.56 The Stockholm programme also highlighted two concrete measures, namely, the effective use of existing financial instruments and the development, through easo, of procedures that would facilitate the secondment of officials in order to help Member States facing particular pressures.57 After the Program’s adoption, the three eu institutions involved in the legislative process published official policy documents outlining their vision on solidarity. In these declarations, all three, avoided pronouncing themselves on the scope of obligations according to this principle and have instead adopted the so-called ‘tool-box’ approach, listing different measures that operationalise solidarity.58 The majority of measures are of an operational, technical or Sharing of Responsibility, including its Financial Implications, between the Member States in the Field of Border Checks, Asylum and Immigration, (ep 2011). 54 The Stockholm Programme (n 44) at para 6.2. 55 Ibid at para 6.2.2. 56 Ibid. 57 Ibid. 58 See European Commission, Communication on Enhanced Intra-eu Solidarity in the Field of Asylum: An eu Agenda for Better Responsibility-Sharing and More Mutual Trust, com(2011) 835; European Parliament, Resolution of 11 September 2012 on Enhanced Intra-eu Solidarity in the Field of Asylum, (2012/2032(ini)); Council Conclusions on a Common Framework for Genuine and Practical Solidarity Towards Member States Facing Particular Pressures on their Asylum Systems, including Through Mixed Migration Flows, 3151st Justice and Home Affairs Council Meeting, March 2012.

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f­inancial nature. The bulk of efforts of ‘solidarity as operational support’ are ensured through the engagement of easo. Financial solidarity is expressed through the Asylum, Migration and Integration Fund (amif) that was adopted in 2014.59 Physical solidarity, meaning the intra-eu transfer of asylum seekers or protected persons between eu Member States, has been extremely limited to date. It has been applied on a small scale through ad-hoc voluntary initiatives that were undertaken exclusively in Malta in 2011 and 2012.60 At the same time, the European Commission’s efforts to amend the responsibility-­allocation regime as part of the recasting process of the Dublin Regulation, through the introduction of a mechanism that would temporarily suspend transfers, did not come to fruition.61 The Lisbon Treaty added an explicit legal basis for the Union’s actions in the external dimension of asylum. Namely, this provision envisages measures comprising ‘partnership and cooperation with third countries for the purpose of managing inflows of people applying for asylum or subsidiary or temporary protection’.62 More importantly, it conceptualised such measures as an intrinsic part of ceas.63 The Stockholm Programme finally stressed the importance of the system’s external dimension. It stated that ‘promoting solidarity within the eu is crucial but not sufficient to achieve a credible and sustainable common policy on asylum’.64 It pointed to the central role that unhcr and easo should play in this area.65 It called more concretely for enhancing capacity building in third countries, mainly through further developing and expanding the idea of rpps and incorporating such efforts into the Global Approach to Migration.66 In what concerns access to protection, it primarily promoted the idea of a voluntary joint Union resettlement scheme and an increase in the total number of resettled refugees.67 The Programme also included a more 59

Regulation (eu) No. 516/2014 of 16 April 2014 establishing the Asylum, Migration and Integration Fund (henceforth amif Regulation). 60 easo, Fact Finding Report on Intra-eu Relocation Activities from Malta, 2012, 4. 61 See the final text of Regulation (eu) No. 604/2013 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) [henceforth recast Dublin Regulation] and the analysis by Francesco Maiani in this collective volume, ‘The Dublin iii Regulation: A New Legal Framework for a More Humane System’. 62 tfeu, Article 78(2)(g). 63 See tfeu, Article 78(2). 64 The Stockholm Programme (n 44) at para 6.2.3. 65 Ibid. 66 Ibid. 67 Ibid.

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vaguely phrased invitation to the Commission to explore ‘in that context and where appropriate, new approaches concerning access to asylum procedures targeting main countries of transit’.68 In this regard, it mentioned the example of protection programmes for particular groups, or forms of extraterritorial processing in which Member States could participate on a voluntary basis. These indications by the European Council led to the inclusion, in 2011, of international protection in eu’s Global Approach to Migration and Mobility (gamm), as a fourth pillar of this overarching strategy.69 In this context the main emphasis lay once more on increased refugee resettlement and enhanced protection capacity through Regional Protection Programmes.70 The Commission had actually formalised eu’s ambition to create a joint resettlement programme in September 2009 before the adoption of the Stockholm Program.71 On this basis, after long-drawn and difficult negotiations, Member States amended the erf in 2012 in order to operationalise the program.72 This effort was consolidated under the amif by providing targeted assistance in the form of financial incentives for each resettled person (6,000 eur) and additional financial assistance when individuals are resettled under the common Union priorities (10,000 eur).73 The common priorities include persons from regions where rpps are implemented, the unhcr resettlement criteria and a number of categories of vulnerable groups of persons.74 amif funding also covers Regional Protection Programmes as part of Union actions,75 whereas external aid instruments previously funded them. Currently, apart from the first two rpps that are ongoing, the following programmes are operational: a rpp in the Horn of Africa Region (Kenya, Djibouti, and Yemen) implemented since September 2011,76 and a rpp in Northeastern Africa (for now 68 Ibid. 69 See European Commission, Communication on the Global Approach to Migration and Mobility, com(2011) 743. 70 Ibid. 71 European Commission, Communication on the establishment of a Joint eu Resettlement Programme, com(2009) 447. 72 Decision No. 281/2012/EU of 29 March 2012 amending Decision No. 573/2007/EC establishing the European Refugee Fund for the period 2008 to 2013 as part of the General programme ‘Solidarity and Management of Migration Flows’. 73 See amif Regulation, Recitals 41–43 and Articles 3(2), 7 and 17(3)–(7). 74 See amif Regulation, Articles 3(2), 7 and 17. 75 See amif Regulation, Article 20. According to the same article, Union actions are ‘transnational actions or actions of particular interest to the Union’ that are initiated by the Commission. 76 European Commission, Annual Report on Immigration and Asylum (2010), com(2011) 291, 24th May 2011, 7.

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covering Egypt and Tunisia) since December 2011.77 Finally, in response to the Syrian crisis, the eu launched a Regional Development and Protection Programme for refugees and host communities in Lebanon, Jordan and Iraq,78 which has been operational since July 2014. This is funded partly by the eu and by ms and is implemented by governments, un agencies and civil society.79 easo’s mandate also contains a component of supporting Member States in their actions in the external dimension, such as refugee resettlement, as well as a limited mandate to exchange with competent authorities of third states in technical matters and the implementation of regional protection programmes.80 Finally, despite the Program’s call for exploring new avenues for protection, there was no eu-level joint coordinated action in this respect. A limited number of Member States made use of other legal channels of entry to the eu, most notably humanitarian admission81 for protection seekers. For example, since 2013 Germany has pledged 20,000 places of humanitarian admission for Syrian refugees.82 Germany has also implemented a programme to admit privately sponsored Syrians to live with their relatives. This initiative is incumbent on the existence of family members in Germany who can commit to covering the transport and living costs for their relatives for the duration of their stay; it concerns an additional 10,000 persons.83 France has provided close to 1,400 asylum visas for Syrians, which enable them to travel for the purpose of applying for asylum.84 Finally, Ireland initiated extended family reunification possibilities 77

European Commission, Third Annual Report on Immigration and Asylum (2011), com (2012)250, 30th May 2012, 16. 78 See European Commission, New eu Regional Development and Protection Programme for Refugees and Host Communities in Lebanon, Jordan and Iraq, December 2013. 79 See European Union Delegation to the un, Questions and Answers: The European Commission Helps Refugees, [http://eu-un.europa.eu/articles/en/article_15168_en.htm] accessed 18 July 2015. 80 See easo Regulation, Article 7. 81 According to amif ‘other humanitarian admission programmes’ means an ad hoc process whereby a Member State admits a number of third-country nationals to stay on its territory for a temporary period of time in order to protect them from urgent humanitarian crises due to events such as political developments or conflicts; see amif Regulation, Article 2(b). 82 See unhcr, Resettlement and Other Forms of Admission for Syrian Refugees, 14 April 2015. 83 See the website of the Germany Ministry of the Interior for more details accessed 15 May 2015. 84 Ibid.

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to allow people affected by the Syrian conflict to join close relatives lawfully residing in Ireland.85 3

The Common European Asylum System beyond Legal Harmonisation: A Critical Assessment

This section analyses practical cooperation that is the raison d’être of the European Asylum Support Office. This is followed by a critical examination of eu’s efforts to operationalise solidarity. Finally, the so-called external dimension of the ceas is assessed, including the difficult question of the existence of a legal path to seek asylum in the eu. The Institutionalisation of Practical Cooperation through the European Asylum Support Office (easo) The easo is functioning since 4 years. Its annual budget for 2015 is around 15,7 M € (six times smaller than Frontex)86 and a staff made of around 86 persons in 2015.87 Time has come for a first evaluation of its activities. In line with Article 46 of its founding Regulation, the Agency has launched in April 2014 an open procurement procedure for an independent external evaluation of the impact of its activities on practical cooperation and on the ceas as well as on the issue of solidarity. One may wonder how it is possible to ensure the independence of an evaluator remunerated by the easo that has to report to a steering group composed of members of its management board and staff, a practice that does not seem anymore in line with the joint statement of the European Parliament, Council and Commission on decentralised agencies.88 The results of this evaluation should normally be known at the end of 2015. The Commission must also carry out, in the course of the last nine months of the Executive Director’s five year term, an evaluation focusing on his performance as well as the Support office’s duties and requirements in the coming years.89 In the meantime, the Commission 3.1

85

fra, Legal Entry Channels to the eu for Persons in Need of International Protection: A Toolbox, 2015, 9. 86 That budget of easo has nevertheless grown from the around 10 M€ that was foreseen for the year 2012. 87 easo, easo Work Programme 2015, 36–37. 88 See Joint Statement of the European Parliament, Council and Commission on decentralised agencies, 19 July 2012, para 60. 89 See easo Regulation, Article 30(1), 3rd indent.

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decided to undertake an internal evaluation that covers the years 2011 and 2012.90 The present publication can of course not aim at evaluating the agency and will therefore be limited to a critical analysis of its activities based on desk research, knowing that there is up to date almost no literature devoted to the easo.91 The activities developed by the agency will be presented following the order of the Regulation. easo annual activity reports do not follow the same logic and distinguish between different types of support (permanent, special, emergency, information and analysis as well as third country support).92 If those categories are more explicit than the ones of the Regulation, they are not always consistent, as the 2015 Work Programme contains a part entitled operational support but not special, neither emergency support.93 The question is not purely formal, as more coherence between activity reports and work programmes would help to evaluate the achievements of the Agency. Moreover, there is an issue behind the idea of special (or specific?) support, as easo Regulation intends to privilege the support to Member States under particular pressures. We successively review the activities of the easo in the following order: practical support directed towards all Member States; support targeting especially Member States subject to particular pressure; finally, support regarding the implementation of the ceas. We add some comments about the cooperation of the easo with civil society and the issue of transparency of the agency. 3.1.1 Practical Support Rather than only supporting cooperation between Member States as it is suggested, easo develops its own activities aiming at helping Member States to develop and implement their asylum policy. The idea is to implement through the agency activities that can be better undertaken at eu, rather than national level, in particular because of the scale economies that they generate. This is the case for training and country of origin information (coi as it is often called by practitioners). The easo has also been given some tasks related to cooperation with third countries. The support to relocation that appears strangely in Article 5 of the Regulation should have been placed under the provisions 90 91 92 93

See Commission Staff Working Document on the internal Evaluation of the European Asylum Support Office (easo), swd(2014)122. One of the rare such publications is F. Comte, ‘A New Agency in Born in the eu: The European Asylum Support Office’ (2010) 12 ejml 373–405. See for example easo, easo Annual General Report 2014. easo Work programme 2015 (n 87).

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related to support for Member States under particular pressure.94 We will analyse it below in the part of our paper related to solidarity, as this is exactly the purpose of relocation between Member States. A training strategy has been adopted by easo. The main goal is to offer to Member States tools that they can use to train their case officers in charge of refugee status determination. It is therefore mainly a ‘train the trainer system’, where the easo is organising sessions for national trainers who will themselves provide training in their Member State of origin to officials of the national administration. The agency has build upon the eac curriculum.95 The content of the curriculum reflects the work of a case officer under three aspects: firstly the core modules about inclusion, together with interview techniques and evidence assessment; secondly advanced modules like for instance drafting and decision making, coi, gender or exclusion; thirdly optional modules like one on the Dublin system related to the determination of the responsible Member State for an asylum application or another one for managers. The modules, that Member States can pick and choose depending on their needs, enable both theoretical and practical approaches and combine a selftraining phase through e-learning, followed by a classical face-to-face session. This combination of techniques is used to facilitate training of professionals at work and to limit travel costs. Such a training system is a good example of cooperation between Member States supported by the easo where both levels rely on each other: while the Agency aims at helping Member States by providing them training tools that they need about eu law on asylum, it cannot function without the support of Member States who are asked to provide to the Agency a pool of trainers and experts that have been divided in three categories (training, content and didactics). One challenge in the area of training is linked to languages. easo is offering its tools mainly in English, while the Member States need to provide training in their national language. In the current system of parallel competences between the easo and Member States, it is logically up to the latter to provide translations. Costs can be limited by providing when possible training at regional level for some Member States, in particular when they share the same language. Besides training, the easo has developed some activities in the area of quality. On the basis of a quality matrix, the Agency aims to comprehensively map the practices of eu countries in the field of asylum in order to identify the best that could be exchanged between Member States. The first document presented as a Quality Report on easo’s website is about ‘Age assessment’ of 94 95

See below Section 3.2. See above Section 2.2.

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minors.96 The other documents are two ‘Practical Guides’, one on ‘Personal interview’ of asylum seekers and another on ‘Evidence assessment’ by asylum case workers. If those documents can effectively contribute to an improvement of Member States practices, they are presented by the easo as instruments reflecting common standards. So, the conceptual reference point chosen by the easo for developing quality tools is actually about good rather than best practices contrary to what is often presumed. Finally, the easo is building, following its 2014 annual general report, a list of projects and initiatives implemented in eu Member States since 2004 that is intended to be a comprehensive and permanent database of projects and initiatives to improve quality. It is difficult to understand why the public does not have access to this list and rather strange that civil society stakeholders are asked to contribute to a database that they cannot use for their own purpose. Regarding coi, the management board of easo has adopted an approach relying on a Strategic Network composed of coi Heads of Units from the Member States and a series of specific expert networks on a country or theme. The activities have been diverse as the founding Regulation does not make a choice between the production or the coordination of coi by the agency.97 The easo has firstly produced itself a certain number of coi reports regarding Afghanistan, the Western Balkans, Somalia, Chechnya, and Eritrea as well as a practical guide on researching the situation of lesbian, gay and bisexual persons in countries of origin. Secondly, the Agency has taken over the management of the eu common coi portal that was launched in 2011 with the support of the European Commission. The aim is to link all coi databases available at national level through a single entry point to allow decision-makers to retrieve information available over Europe with one single search. Details about the portal are extremely limited due to the fact that its access is limited to the asylum administrations of the Member States, but it has been announced that the next generation portal to be launched in early 2016 will give public access to national coi reports. In 2014, 580 active users were registered98 and 5 databases (Germany, France, Norway, Sweden and Finland) accessible through the portal. One should also not ignore that the easo is organising meetings of experts on specific countries or themes that can be important for exchanging and evaluating coi. Seven specific coi networks have been created regarding Somalia, Syria, Pakistan, Iraq, Iran, Russia and Afghanistan.99 96 easo, Age Assessment Practice in Europe, 2013. 97 See easo Regulation, Article 4. 98 easo Annual General Report 2014 (n 92) 17. 99 Ibid 15.

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Finally, easo has been given some tasks related to the external dimension of ceas, under Articles 7 and 49 of its founding regulation. The so-called ‘External Action Strategy’ adopted by easo in November 2013 is mainly a descriptive document listing possible priorities, actions, funding schemes and partners, rather than a strategy. The main message it convenes is that supporting capacity-building in third countries by helping them to improve their asylum and reception capacities, is the primary aim of the external action of the easo. The only initiative taken up to date aims at involving Jordan, Morocco and Tunisia in the work of easo and Frontex and is funded by the European Neighbourhood Policy Instrument.100 Resettlement has been given few attention by easo in its external action. Actually, most activities at eu level in this field took place outside the easo, through the Resettlement and Relocation Forum that met two times in 2013 and 2014 upon the initiative of the European Commission and through the European Resettlement Network,101 that is a initiative launched in May 2012 with the financial support of the eu and coordinated by the International Organisation for Migration (iom), unhcr and the International Catholic Migration Commission (icmc) aiming at supporting the development of resettlement in Europe. The situation is not likely to change as easo has allocated for 2015 only a budget of 220.000€ to resettlement with less than one full time equivalent person working in that field.102 Finally, no working arrangements have been concluded by the easo with third country authorities competent in technical aspects of the areas covered by its founding regulation. This is actually one more element reflecting the weakness of the external action of the agency due to the negligible means it can allocate up to date to this area in the scope of its limited budget. 3.1.2 Support for Member States Subject to Particular Pressure The easo Regulation, foresees under its Article 8, support for Member States ‘subject to particular pressure which places exceptionally heavy and urgent demands on their reception facilities and asylum systems’ characterised by the sudden arrival of a large number of asylum seekers or from the geographical or demographical situation of the Member State. The Regulation is not very consistent regarding the vocabulary used, as Article 5 devoted to relocation refers

100 For more information see accessed 26 July 2015. 101 See accessed 21 July 2015. 102 See easo Work Programme 2015 (n 87).

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to Member States that are faced with ‘specific and disproportionate pressures’.103 This raises the question if this term has the same content as ‘particular pressure’, that seems to be the most frequently used concept, as it is also employed in the recast Dublin Regulation. The aim of the present paper can obviously not be to fully analyse and evaluate the support provided by the easo, in particular because the Agency did not make to date public reports on the results of its actions, apart from the cases of Greece and Bulgaria. Therefore, the following paragraphs will be limited to a preliminary analysis of easo practice, knowing that the evaluation undertaken should allow assessing the efficiency and effectiveness of the activities of the Agency in this area. The Asylum Intervention Pool from which the easo can draw Member States’ experts to be deployed in Asylum Support Teams was made of 238 experts in 2014.104 easo provided help to 6 Member States between 2011 and the summer 2015: Greece that benefited of 3 support plans since 2011, Luxembourg and Sweden with one support plan for each in 2012, Italy and Bulgaria with 2 supports plans since 2013 and Cyprus since 2014. The most important support plans concern Greece, Italy, and Bulgaria, while the plan for Cyprus does not provide data. The plans for Luxembourg and Sweden were actually extremely limited and covered exclusively the provision of training. In the case of Greece, 70 experts were deployed under the first plan (2011–13) and 73 experts under the second plan (2013–2014), while training sessions (regarding mainly inclusion, interview techniques, evidence assessment and coi) were organised for 524 officials and 55 trainers were accredited until July 2014.105 The main kind of support provided by easo is unsurprisingly training, but the agency provides also very diverse operational expertise regarding, for instance, registration of asylum seekers, format for asylum applications, asylum process, recording and transcription of interviews of asylum seekers, nationality establishment techniques, referral of vulnerable persons, coi, acceleration of procedures, collection and analysis of statistics, excel instruments for r­egistering flows, quality management and control as well as management of eu funding. Member States with different types and extent of needs such as Greece, Bulgaria, Cyprus, Italy, Luxembourg and Sweden have benefited from actions targeted to Member States under ‘particular pressure’. To our knowledge, the Agency has 103 Emphasis added. 104 easo, easo Annual General Report 2014 (n 92) 24. 105 See, easo, easo Operating Plan for Greece: Interim Assessment of Implementation, 2014; for an assessment of the impact of asts in Greece see also P. McDonough and L. Tsourdi, ‘The “Other” Greek Crisis: Asylum and eu Solidarity’ (2012) 31 rsq 67.

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not defined this notion in an abstract way, but some limited elements can be derived from the cases in which it agreed to send an Asylum Support Team (ast) following an ‘operating plan’ or a ‘special support plan’ (these two different designations are used without consistency) agreed on the basis of Articles 13 and 18 of easo Regulation. In the case of Luxembourg, the plan mentions that during 2011, the number of asylum seekers almost tripled compared to 2010,106 while ‘a significant increase of 37%’ from 2013 to 2014 is mentioned in the case of Cyprus.107 In the case of Greece, the first plan of 2011 refers to a ‘significant influx of illegal entrants at the European external borders’,108 while in the case of Bulgaria only the fact that the asylum and reception system faces major challenges is mentioned despite a reference to an assessment mission in the country.109 Regarding Italy, the first plan of 2013 refers to rather specific problems with the system of reception conditions for asylum seekers,110 while the second plan considers that there is a need for support to ensure sustainability of the good results achieved by the 1st plan so that the current and future challenges can be adequately addressed.111 The special support plan for Sweden does not provide any reason and mentions curiously ‘easo’s duty to provide special support to Member States with special and specific needs’112 that is an unknown notion in the Regulation. Without denying the necessity of a certain flexibility regarding the determination of the cases within which easo can provide its support, it would be useful to have a better definition of the latter notion on the basis of objective data reflecting its relative position towards the others.113 This would help the easo to decide when it should or not start (and also when it should or not stop) to provide support to a Member State claiming to be under particular pressure. Moreover, it should also have consequence on the distribution of costs, as it seems logical to reserve the more favourable rules foreseen by Article 23 of easo Regulation on reimbursement by the Agency to the cases of Member States under particular pressure. Clarity about the Member States under particular pressure would also help the European institutions, and in 106 107 108 109 110 111 112 113

easo, Operating Plan for the Deployment of Asylum Support Teams to Luxembourg, 2012. easo, easo Special Support Plan to Cyprus, 2014, 3. easo, easo Operating Plan for the Deployment of Asylum Support Teams Greece, 2011, 5. easo, easo Operating Plan to Bulgaria, 2013. easo, easo Special Support Plan to Italy, 2013, 3. easo, easo Special Support Plan to Italy: Phase ii, 2015, 2. easo, easo Special Support Plan: Swedish Migration Board, 2012, 1. See below, Section 3.2.

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particular the European Commission, to have a better view of the situation in the different Member States. To be able to provide support to Member States under particular pressure, Article 9 of easo Regulation requests the Agency to collect and analyse three types of information to be delivered by those Member States in order to evaluate their needs. Firstly, information on structures of the administration in charge of asylum and staff available (especially for translation and interpretation) as well as the asylum (meaning reception?) capacities; secondly, information for the identification, preparation and formulation of emergency measures (in particular accommodation) to cope with a particular pressure; thirdly, data on any sudden arrival of large numbers of third-country nationals to ensure the rapid exchange of information amongst Member States and the Commission. The first type of information is particularly important in order to evaluate the needs of the Member States and also to try to define as much as possible on an objective basis what a particular pressure is. If such data are available in the framework of the Early Preparedness System (eps), it has regrettably not been used by the Agency to evaluate the asylum reception capacities of the Member States. The easo launched an eps that is foreseen by its Regulation.114 Very limited information is actually available about this system. It is apparently a database containing a certain number of statistical indicators (for instance number of asylum applications, decisions, pending cases) about the practical functioning of the ceas. It has led to the publication since end 2013, of a ‘Quarterly Asylum Report’ that provides a statistical overview of the trends in applications for international protection in the eu (such as number of applicants, their profile like citizenship, countries of destination, etc.) apart from a certain number of eu restricted documents addressed only to the members of the easo Management Board. The role of the eps has to be understood in the framework of the mechanism for early warning, preparedness and crisis management included in the Dublin iii Regulation.115 Such a mechanism was created in 2013 in order to prevent (or in case manage) an asylum crisis like the one in Greece. The mechanism relies on the Commission that is supposed, when it establishes that the application of the recast Dublin Regulation may be jeopardised due to a risk of particular pressure on a Member State, or to problems in the functioning of the asylum system of a Member State, to recommend to that Member State to draw up a preventive plan. Such a system can obviously only function if the 114 See easo Regulation, Article 9, para 3. 115 See recast Dublin Regulation, Article 33.

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Commission is well informed about the situation of the asylum system of the Member States. This is when easo is involved on the basis of Article 33(1) of the Dublin iii Regulation by providing to the Commission the necessary data on the basis of its eps. The ongoing evaluation of easo will hopefully clarify what this system precisely is (and in particular why the easo has chosen to create not an early warning but a preparedness system), how it works and if it plays its preventive role. Up to date, the mechanism of early warning has not allowed taking measures to prevent the crises that some of the eu Member States faced, for example Italy and Bulgaria. It would seem that for now the case law developed by judges (in particular the European Court of Human Rights) remains a better indicator.116 Moreover, it seems that the eps developed by easo is a long rather than a short-term project that raises the question if and how it can feed the early warning mechanism foreseen in the recast Dublin Regulation. Finally, the evaluation undertaken by the Commission regarding the support in terms of translation and interpretation came to the conclusion that the List of Available Languages (lal) managed by easo where one Member State in need can check the availability of an interpreter in a certain language in the other Member States, is of limited added value in comparison with the Interpreter Pool Project before it was taken over by the easo and recommended to the Management Board of the Agency to ‘foresee a strategic discussion on the possible role and scope of the Agency in the field of interpretation as a key area where practical cooperation can bring an important contribution to the quality of the ceas’.117 3.1.3

Support to the Implementation of the Common European Asylum System The last type of support envisaged by the easo Regulation is certainly the most ‘European’ one, as it is supposed to contribute to the development of the ceas. The mission of the Agency in this respect is double. Firstly, to gather and exchange information about the implementation of all relevant instruments of the asylum acquis, including the creation of factual, legal and case-law databases on national, Union and international asylum instruments. These activities may overlap with the Commission’s mission to monitor the implementation of eu law and, potentially, start infringement procedures in case of its violation by Member States. However, the action of the Agency in this field appears rather limited to date. In particular the documentation available on 116 See for example Tarakhel v Switzerland Appl no 29217/12 (ECtHR, 4 November 2014). 117 Commission on the internal evaluation of the easo (n 90) 21.

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easo’s website in relation with eu legislation in the field of asylum is more than basic. It should, however, develop in the future with the creation of an Information and Documentation System (ids) that is an electronic library supposed to give to the public access to documents about the functioning in practice of the different stages of the asylum process. This system should normally prove extremely useful for the easo, the Member States and the eu institutions as well as the public in general, including civil society and the academic community. The Agency has also launched in 2014 a query system allowing the Member States and the agency to address to each other questions concerning practical aspects of the ceas in order to receive precise answers in a short time frame. Such useful system, that is also operational in the framework of the European Migration Network,118 is very much appreciated by Member States. Once again, the issue of its openness to civil society will be questioned. It could be solved by limiting its access to organisations that are member of the easo consultative forum, and by giving to the Agency a clearing role about the launch of a query upon the request of actors other than Member States and the agency itself. The second mission is to publish diverse documents. easo is asked to prepare an annual report on the situation of asylum in the Union, not be to confused with the activity report of the Agency foreseen by Article 29(1)(c) of the easo Regulation. The agency has developed for that document a general structure that has not changed throughout the three editions with a first part on statistics about asylum in the eu, a second on major developments including legislation and case-law at eu and national level and a third one on the functioning of the ceas with elements about Member States’ policies. After a first edition that merged the two reports and was criticised by civil society,119 it has developed into a more substantiated document providing rich information about the asylum policy in general. Efforts could be undertaken to better pursue one of the goals of the report that is to ‘evaluate the results of activities carried out under this regulation’,120 in particular regarding the Member States contribution to the agency that 118 For more information about the emn ad hoc queries see accessed 23 July 2015. 119 See ecre, ecre’s Observations on the easo Annual Report on the Situation of Asylum in the European Union and on the Activities of the European Asylum Support Office, September 2012. 120 See easo Regulation, Article 12(1).

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cannot function without their strong support. The ongoing evaluation of the agency should look to the report’s impact, including to which extent this document became or not a key document for the debate about the asylum policy in the eu and the use that the eu institutions and Member States make of it. While the heading of Article 12 of the Regulation innocently announces ‘other Support Office Documents’, its second paragraph is about ‘technical documents on the implementation of the asylum instruments of the Union, including guidelines and operating manuals’. The idea of the publication of such documents by the easo is actually politically very sensitive, due to the fact that Member States want to remain exclusively competent about the implementation of eu asylum instruments. The authors of that provision were perfectly aware of this issue, as shown by the careful procedures imposed to easo for doing so, and in particular the indication that ‘the documents shall not purport to give instructions to Member States about the grant or refusal of applications for international protection’. Up to date, the agency has not published such documents, even if it presents already its practical guides as ‘soft convergence tools’.121 Even if the wording ‘soft-law’ is not (yet) explicitly used, the idea is extremely interesting for the debate on the future of the easo that will take place during the next years regarding the revision of its mandate on the basis of the results of the first evaluation of the Agency. Despite the fact that easo has up to date published a limited number of documents, it is not always easy to understand what their nature exactly is, due to the absence of explanations regarding the meaning of the different series of publications of the Agency, and also a lack of systematisation of the published documents between those series. For instance, the publications on ‘Evidence assessment’ and on ‘Personal interview’ are sometimes presented by the easo as quality reports,122 while they appear on the website of the Agency in a series entitled ‘Practical Guides’. The website of the Agency only presents under ‘Training & Quality Reports’, a document entitled ‘Age assessment practice in Europe’, for which no series is indicated on the cover. The easo apparently aims with these documents to help the case officers in charge of protection determination in Member States to accomplish their tasks by providing them more or less specific practical advice. Finally, two documents, part of a series 121 See easo, easo Practical Guide: Evidence Assessment, 2015 and easo, easo Practical Guide: Personal Interview, 2014. 122 See the presentation for the session on Quality Processes made during the 4th easo Consultative Forum in December 2014, 2 accessed 16 July 2015.

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entitled ‘Legal Analysis’, are about Article 15(c) of the Qualification Directive. They put at the disposal of courts and tribunals a tool for the understanding of the difficult notion of subsidiary protection in the case of armed conflicts. The latter documents addressed to judges can by definition not be legally binding and for the rest, the easo never pretended to address instructions to Member States regarding the way applications for international protection must be analysed. This, however, does not mean that Article 12(2) of the easo Regulation prohibiting general guidelines that would be legally binding for Member States, is in line with the need to build a ceas. Finally, it is interesting to note, that the easo has started to compile and analyse statistics on asylum and to publish some of them on a monthly and quarterly basis, while this was not at all foreseen in its founding Regulation. This shows that there is actually a need to have quicker or/and more detailed statistics than those provided by Eurostat on the basis of Regulation 862/2007 on Community statistics on migration and international protection. 3.1.4 Cooperation with Civil Society and Transparency Article 51 of the easo Regulation contains one provision requiring the agency to maintain a close dialogue with civil society and to set up a consultative forum for this purpose. An annual meeting of the forum has been organised 4 times but easo’s website gives little information about it. The first meeting in 2011 attracted more representatives of Member States than ngos that were, moreover, not given much space on the programme. The 2014 edition was convened in Brussels to facilitate the participation of civil society by saving travel costs to the seat of the agency in Malta, but the absence of a list of participants prevents the evaluation of the results of that welcomed decision. As civil society is also consulted outside the scope of the annual meeting of the forum, it is difficult to evaluate its possible influence on the agency’s work. Accessibility of easo tools to civil society and the broader public also raises concern. The agency seems to have decided as a principle not to make publically accessible its tools (training modules), databases (coi) and documentation (ids), at least during a first period. Such choice is questionable and the motives supporting it should be checked at the occasion of the ongoing evaluation of the agency. Transparency will become more problematic in the future with the increase of production by the agency, especially if the lack of systematisation in the presentation of documents on the easo website persists. Finally, lists of all networks and tools created by the easo in the scope of all its activities should be disclosed on the agency’s website to facilitate the understanding of its activities.

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3.2 Solidarity and Responsibility but Still No Fair-Sharing123 Solidarity is presented as a foundation by Article 67(2) tfeu according to which the European Union: shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals. Article 80 tfeu details the meaning of this provision by stating that: [t]he policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications between the Member States. Whenever necessary, the Union acts adopted pursuant to this Chapter shall contain appropriate measures to give effect to this principle. This provision going much further than the Geneva Convention that does not contain a provision on solidarity,124 is extremely important as it raises not only solidarity but also ‘fair responsibility-sharing’ to the rank of a principle supposed to govern the asylum policy. Its precise meaning and effect is, however, not easy to determine, including its precise object and namely if it is a single or double principle and what the difference is between solidarity and fair responsibility-sharing. It is obviously binding as underlined by the use of the verb ‘shall’. This means that solidarity is no longer a subject for political debate but a legal obligation that must be implemented, even if the eu and its Member States retain discretion regarding the way they will proceed, knowing however that Article 80 tfeu puts the emphasis on financial solidarity. Even if it should not be considered as having direct effect due to a lack of clarity and in particular the need for implementing measures, the second sentence clarifies precisely the obligation for the eu to include ‘appropriate 123 See on this issue F. Maiani, ‘Sans solidarité point d’Union européenne, Regards croisés sur les crises de l’Union économique et monétaire et du Système européen commun d’asile’ (2012) 48 Revue Trimestrielle de Droit Européen 295–327. 124 Its preamble considers that ‘the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-operation’.

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­ easures’ in asylum legislation in order to give it effect. Regarding the subject m of obligations, Article 80 tfeu targets directly the eu (in particular the legislator) and its institutions, contrary to the 1969 Convention governing the specific aspects of refugee problems in Africa,125 that is addressed to States. However, eu Member States are also included in the scope of this provision as they are in charge of the asylum policy implementation that is remarkably also made explicit by this provision. Despite its constitutionnalisation, the principle of solidarity has not been given the expected attention by the eu, neither by its Member States. This becomes apparent from the communication on enhanced intra-eu solidarity in the field of asylum published by the Commission on 2 December 2011.126 Instead of focusing on the requirements of Article 80 tfeu and ways to implement them, the Commission proposes an ‘evolving and flexible toolbox’ approach made of four main components: practical cooperation, financial solidarity, allocation of responsibilities and improving governance through mutual trust. The second component, as well as the first to an extent, are indeed measures of solidarity. However, the third and fourth components advanced by the Commission are rather surprising. Presenting the current ‘Dublin system’ of responsibility-allocation as a way to implement solidarity is reckless, if not dishonest, when one has already acknowledged in a previous document, such as the ‘Policy Plan on Asylum’ that it is not a solidarity mechanism.127 Relocation would obviously contribute to solidarity, but the Commission has not proposed as announced a voluntary and permanent scheme to implement it. The last component entitled ‘mutual trust at the heart of a renewed governance system’ remains rather vague and curious like the idea of ‘strenghtening the resilience of the Dublin system’,128 while the link between trust and solidarity is unfortunately not elaborated, despite this being a real and crucial question. The Council Conclusions adopted on 8 March 2012,129 increase the defects of the Commission communication on which they build. Compared to the 125 See article 2(4) of that Convention stating ‘[w]here a Member State finds difficulty in continuing to grant asylum to refugees, such Member State may appeal directly to other Member States and through the oau, and such other Member States shall in the spirit of African solidarity and international cooperation take appropriate measures to lighten the burden of the Member State granting asylum’. 126 Commission Communication on Enhanced Intra-eu Solidarity (n 58). 127 See European Commission, Policy Plan on Asylum: An Integrated Approach to Protection across the eu, com(2008)360, 8. 128 Commission Communication on Enhanced Intra-eu Solidarity (n 58) 11. 129 See Council Conclusions on a Common Framework for Genuine and Practical Solidarity (n 58).

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­ revious Commission proposals the practical cooperation coordinated by the p easo becomes ‘preventive cooperation’ without indication of what should be prevented, the allocation of responsibilities disappears as such, while the idea of responsibility reappears and a link between mutual trust and solidarity is established in the same general and vague way, despite it being the first measure proposed. Financial solidarity remains of course on the agenda, but the only measure envisaged to that effect is the swift adoption of the new funding framework for the period 2014–2020, without further explanations. Three other measures aiming genuinely at solidarity relate to relocation, for which no concrete proposal of implementation is made, a mention to the Temporary Protection Directive, and joint processing of asylum claims between Member States as object of a feasibility study to be undertaken by the Commission. For the rest, two measures have as real goal to avoid recourse to solidarity in the field of asylum. These are namely ‘solidarity in emergency ­situation’, that is actually mainly about a series of actions related to border control to be undertaken by Frontex, and ‘solidarity through strengthened cooperation with key countries of transit, origin and first countries of asylum’, aiming at diminishing the number of asylum seekers arriving in the eu and ‘solidarity in the area of returns’ that is not part of the asylum policy, despite its closed links with it. Overall, it seems that the list of the Commission has been extended by the Council with a catalogue of diverse measures more and more loosely linked to solidarity in order to hide the fact that the core issue is not addressed. Conceptualising solidarity is an extremely difficult task that goes beyond the scope of the present paper where we limit ourselves to distinguishing between the different forms of burden or responsibility sharing in asylum law and policy. Generally,130 one distinguishes between three or four types of way of sharing that we will analyse below: normative, financial, operational and physical. All are used by the European Union, but not to the same level. 3.2.1 Normative Sharing The first type is normative sharing, meaning sharing legal norms regulating the asylum policy. Even if progress is still possible and could be achieved in the future through a coherent asylum code, this type of solidarity is very advanced in the eu with the adoption of two generations of legal instruments. A high level of harmonisation has been reached, even if it is not equal in every area: very high regarding the definition of protected persons (Qualification ­Directive); 130 For an in-depth analysis, see G. Noll, Negotiating Asylum. The eu Acquis, Extraterritorial Protection and the Common Market of Deflection (Kluwer 2000) 263.

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less high regarding the rights and duties of asylum seekers (Reception Conditions Directive) where harmonisation is hindered by the divergent level of social rights between eu member States; still lower regarding asylum procedures where the types of procedures are not harmonised contrary to procedural guarantees (Asylum Procedures Directive). It is remarkable that the lack of solidarity became increasingly a problem, despite the progress made in legal harmonisation. One can actually wonder how legal harmonisation contributes to solidarity.131 Even if this is not obvious, sharing norms is indeed an element of solidarity as it prevents the possibility for States to ‘compete’ with each other in lowering their standards in order to become less attractive destinations for asylum seekers. However, a number of Member States perceives lack of solidarity in the eu, due to the fact that harmonisation is not the main element guiding the distribution of asylum seekers between States. Apart from the fact that the level of implementation of common rules may still vary, other factors determine the choice of the destination country for asylum seekers such as linguistic affinity, diaspora networks and geography, even if the latter plays a less important role in the eu due to the abolition of internal border controls in the Schengen Area. This is obvious in the case of eu where the Dublin system determining in theory the asylum country, is actually hardly implementable, mainly due to the fact that it does not take into consideration the preferences of asylum seekers. 3.2.2 Financial Burden-Sharing Secondly, financial burden-sharing that goes back to the creation of the European Refugee Fund (erf) by a 2000 Council decision.132 This fund was established because the common asylum policy:133 should be based on solidarity between member States and requires the existence of mechanisms intended to promote a balance in the efforts made by Member States in receiving and bearing the consequences of receiving refugees and displaced persons. It is nevertheless striking that solidarity was curiously not mentioned among the objectives of the Fund under Article 1 of that decision. If the Commission 131 E. Thielemann, ‘Why Asylum Policy Harmonisation Undermines Refugee Burden-Sharing’ (2004) 6 ejml 47–65. 132 See 2000 erf. 133 See 2000 erf, Recital 2.

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emphasised solidarity in the third generation of the erf,134 the redistributive effect of the erf is limited due to the fact that most of the funds are distributed on the following basis: 65% following the number of asylum seekers and 35% following the number of protected persons in each of the Member States. This has led to the result that countries with large absolute numbers have benefited disproportionately, compared to other countries with much greater relative burdens (e.g. relative to population or size of gdp).135 It is important to keep this in mind as the amif has kept those criteria, despite more than a decade of experience since the creation of the erf. This is not in line with the specific objective of responsibility-sharing of the fund expressed under point (d) of Article 3(2) and particularly unfortunate due to the fact that one could expect a more targeted use of eu funding that represented in 2007 only 2% of the amount spent by Member States in the field of asylum.136 Despite the increase of the global amount of the amif compared with the previous funds and even if some funds may be attributed in emergency situations in case of a ‘heavy migratory pressure in one or more Member States characterised by a large and disproportionate inflow of third-country nationals which places significant and urgent demands on their reception and detention facilities, asylum systems and procedures’ following Article 2(k) of the regulation, the amif can be considered only as a symbolic measure from the point of view of burden-sharing. 3.2.3 Operational Sharing The third form of solidarity is operational (or technical) sharing. This is the case when support is provided to one State in need of help for implementing (or even sometimes building up) its own asylum system. In the eu, this task has been allocated to the European Asylum Support Office, whose name is explicit on that point. Apart from practical support that is accessible to all Member States as a sign of European solidarity, the link with burden-sharing is clearly established by the support that easo has to provide to Member States subject to particular pressure, even if the meaning of this notion has not been

134 See European Commission, Communication establishing a framework programme on solidarity and the management of migration flows for the period 2007–2013, com(2005) 123. 135 E. Thielemann, ‘Symbolic Politics or Effective Burden-Sharing? Redistribution, Side-Payments and the European Refugee Fund’ (2005) 43 Journal of Common Market Studies 820. 136 E. Thielemann, R. Williams and C. Boswell, ‘Study for the European Parliament: What System of Burden Sharing Between Member States for the Reception of Asylum Seekers’? (European Parliament 2010) 139.

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clarified by the agency’s practice.137 More precisely, operational support belongs to solidarity because the support provided by the agency is funded by the European budget, so that ultimately operational support is a kind of financial solidarity funded by the European Union. The functioning of the Asylum Support Teams (asts) is especially interesting as it reflects the level of the European solidarity.138 asts are composed of experts from eu Member States that may be sent to other Member States following a decision of the Executive Director of the Agency. The number and profile of experts that form part of the Asylum Intervention Pool is decided by a majority of three quarters of the management board of the agency. Member States remain autonomous to define their own national pool but, if necessary, they must provide the promised experts unless they are faced with a situation substantially affecting the discharge of national duties, such as insufficient staffing for the performing of asylum procedures. Contrary to what has been foreseen for the strengthening of Frontex powers regarding European Border Guards Teams in order to prevent as much as possible a mismatch between Frontex needs and Member States’ contributions,139 the number of experts of each national pool is not the object of annual negotiations and agreements between the easo and Member States. The following costs of asts are supported by the agency: travel, daily subsistence allowances including accommodation, as well as experts’ fees. On this point, solidarity in the field of asylum policy seems, at a first glance, more European than in the case of the external borders’ policy, as Frontex does not cover the salary of the European Border Guards who continue to be paid by their Member State of origin. This is, however, not the case because the covering of the costs by Member States represents actually an indirect increase of the means at the disposal of the agency outside its own funding coming from the eu budget. The idea of joint processing of asylum applications has been on the asylum agenda for a long time, as the Commission delivered only in 2013 the study140 that had been requested by the European Council already in the 2004 Hague programme. At that point the issue was discussed in the context of extra-­territorial processing, while it is nowadays envisaged as part of in-country processing applications. The content of the term ‘joint processing’ is yet to be clarified.141 137 See above Section 3.1. 138 See easo Regulation, Articles 13–23. 139 See Frontex Regulation, Article 3(b). 140 See Urth, Heegaard Bausager, Kuhn and Van Selm, Study for the Commission on Joint Processing (n 51). 141 See also Section 2.3 above.

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We  consider that it actually starts with supported processing when asylum applications are examined by officials of the competent Member State, with the support of officials of one or another Member States or of the easo, continues with common processing when the decision is the product of the intervention of officials from different Member States at different stages (like responsibility determination, identification, assessment of vulnerability, interview, etc.) and ends up with European processing, where the joint elements actually disappear as the decision is taken by a truly European authority instead of the Member States. Joint, or more exactly supported, processing became concrete through pilot projects set up by EASO in 2014 upon the request of the Task Force Mediter­ ranean. Very little information is available on these projects, mainly through easo monthly newsletters mentioning that the first ones where limited to the pre-interview stages in the asylum procedure, while the next ones went further and officials of other Member States were tasked to proceed to interviews of asylum applicants. Supported processing actually consists of practical support provided by Member States under the coordination of the easo. The difference with other ongoing easo support is that it is about individual asylum cases, rather than touching on general elements like coi, training, etc. It can therefore be considered as an element of solidarity. A report assessing those experiences, announced by the easo for the end of 2015, should allow evaluating the potential contribution of this tool. One may wonder if supported processing can be easily used on a large scale, in particular in the context of Member States under particular pressure, especially if the concerned Member States does not share the same language and similar procedures. In any case, the passage from supported processing towards common processing is hindered by the fact that easo cannot currently exercise power in relation to the taking of decisions by Member States’ asylum authorities on individual applications for international protection.142 This marks a difference between the easo asts and the Frontex European Border Guards Teams, as the latter have been allowed to exercise some power at the external borders of a Member State other than their own. 3.2.4 Physical Sharing The fourth form of solidarity is physical sharing that has been until recently,143 the oldest (at least in theory) but also the least developed type of solidarity. A first very basic scheme for physical sharing had been included in the Temporary 142 See easo Regulation, Article 1(6). 143 See below Section 4.2.

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Protection Directive, an instrument that has up to date not been activated.144 Physical sharing is also foreseen through relocation, a new term introduced in refugee law by the eu. As underlined by Article 5 of the easo Regulation, the goal is to alleviate the burden of eu Member States ‘faced with specific and disproportionate pressured on their asylum and reception systems due in particular to their geographical or demographic situation’, even if this provision is curiously located in the section of the Regulation devoted to practical support, rather than in the one devoted to solidarity. If relocation is new at eu level, one has to keep in mind that several Member States have internal dispersal schemes of asylum seekers implemented to share the burden of reception between their components (Germany and its Lander) or to avoid their concentration in some areas (United Kingdom and London).145 Even if relocation appeared as an activity eligible for funding under the 2007 European Refugee Fund, it really attracted political attention in the European Pact on immigration and asylum,146 as a result of the call for responsibilitysharing launched by Mediterranean Member States like Cyprus, Greece, Italy and Malta. This led to the inclusion of relocation in the easo Regulation that raised a serious dispute about the voluntary (favoured by the Council) or mandatory (favoured by the Parliament) character of relocation for the Member State of destination. This issue was solved in favour of the former as the Regulation states that: ‘[r]elocation within the Union shall be carried out only on an agreed basis between Member States and with consent of the beneficiary of international protection concerned […]’.147 Due to the fact that this definition is only valid within the scope of easo activities, the dispute reappeared in the negotiations of the amif where it was solved by avoiding any definition of relocation that is only mentioned as a ‘transfer of beneficiaries of international protection’, for which a lump sum of maximum 6000 € is foreseen for each transferred person.148 Regarding the implementation of relocation in practice, the eu has very limited experience. Only two European projects regarding relocation from Malta, entitled eurema, have been implemented. The activities of easo have also been extremely limited in the field of relocation, probably because the agency considers that there is not enough political consensus to develop practical 144 See above Section 2.2 for analysis. 145 On this issue, see Thielemann, Williams and Boswell, Study for the European Parliament (n 136). 146 See European Pact on Immigration and Asylum (n 24). 147 See easo Regulation, Article 5, second sentence. 148 See amif Regulation, Article 18.

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cooperation with the Member States in this area. Its main achievement has been to produce a short report evaluating the eurema projects.149 In numerical terms, the results of the projects that were based on the principle of double voluntariness for Member States and beneficiaries are very modest, with 227 persons relocated in 2011 and 356 in 2012, most of them being relocated to Germany and France. Opinions on relocation differ depending mainly on two elements. The first is the target group of persons. If there seems to be a political consensus that relocating beneficiaries of international protection can be both useful and appropriate,150 this is not the case for asylum seekers. Relocation remains moreover controversial even when it is about beneficiaries of international protection, including for ngos. Apart from the classical pull factor fear exp­ ressed by Member States, ecre considers that: the systematic use of intra-eu relocation risks resulting in responsibilityshifting if this is not accompanied by clear conditions and criteria with regard to the treatment of asylum seekers and beneficiaries of international protection in the country concerned. The eu and its Member States should be careful not to create disincentives for Member States concerned from sufficiently investing in their national protection ­ system  […]. Member States may otherwise be tempted to design their national asylum policy with the main objective of ensuring that as many persons granted international protection will leave their territory as soon as possible.151 The second element of divergence regarding relocation and the most controversial point, concerns its voluntary or mandatory character for the Member States of destination, as well as for the concerned person. Member States logically prefer to avoid creating an obligation to relocate a specific amount of persons, but the experience of eurema shows that the effectiveness of such approach may be very limited. The most in-depth study on burden-sharing in the field of asylum undertaken in 2010 for the libe Committee of the European Parliament concludes that: only physical relocation of asylum seekers will make a significant contribution to a more equitable distribution of asylum costs across Member 149 easo, Fact Finding Report (n 60). 150 Ibid 7–8. 151 ecre, Enhancing Intra-eu Solidarity Tools to Improve Quality and Fundamental Rights Protection in the ceas (ecre 2013) 46.

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States. If this is to avoid generating significant human costs and additional costs to the Member States, it is crucial that this is based on a ­voluntary relocation of the asylum seeker.152 The authors however add in their recommendations that: ‘internal relocation may need to be explored thoroughly as a distribution mechanism, with particular attention to the preconditions of such a measure to be successful and the practical implications for Member States’.153 As there is also room to improve the financial sharing inside the European asylum policy,154 there is still a need to investigate carefully155 those burden-sharing instruments in order to determine the most effective and efficient in terms of redistributive effect. 3.2.5 Still No Fair Sharing Overall, solidarity and fair-sharing of responsibility is the pillar of the ceas that has almost been ignored up to date, apart from the wording of the preamble of legislative instruments or in policy documents, paying lip service to a principle that is not really implemented. In particular, the element of ‘fair sharing of responsibility’ that is explicitly mentioned in Article 80 tfeu, has been totally neglected. This is unsurprising bearing in mind that the current division of responsibilities between eu Member States is regulated by the Dublin system, a ‘cornerstone of the ceas’,156 that has not been build on fair-sharing and is even running counter to this principle as illustrated by the contribution of F. Maiani to the present book. The strategic guidelines on legislative and operational planning within the Area of Freedom, Security and Justice for the period 2015–2019 are a good example of this trend.157 The easo multi-annual work programme for 2014– 2016 did not contain any reference to the principle of solidarity, and in particular 152 Thielemann, Williams and Boswell, Study for the European Parliament (n 136) 146. See also  the well-substantiated publications of E. Thielemann on this issue, for example E.  Thielemann and C. Armstrong, ‘Evaluating the prospects for enhanced solidarity in the ceas’ (2012) 15 European Policy Analysis accessed 11 August 2015. 153 Thielemann, Williams and Boswell, Study for the European Parliament (n 136) 147. 154 See above Section 3.2.2. 155 See for example Ramboll and Eurasylum, Study for the European Commission on the Feasibility of Establishing a Mechanism for the Relocation of Beneficiaries of International Protection Done for the European Commission (European Commission 2010). 156 Recast Dublin Regulation, Recital 7. 157 European Council Conclusions – 26/27 June 2014, Doc. No. euco 79/14.

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did not plan any activity related to relocation, contrary to its mandate, as well as promises of the eu institutions. Another element illustrating the positioning of the eu institutions towards solidarity is the fact that the Council has refused to follow the proposal of the European Parliament to include Article 80 tfeu as additional legal basis of the amif Regulation.158 From time to time, the shipwreck of boats full of migrants in the Mediterranean provokes emotion, if a sufficient number of persons drown all together at the same moment. Such was the case on 3 October 2013 when more than 360 persons died near Lampedusa. A ‘Task Force Mediterranean’ chaired by the Commission was created and gathered the European External Action Service, the Member States and the jha agencies. The European Council invited during its meeting of 24 and 25 October this task force only to ‘identify – based on the principles of prevention, protection and solidarity – priority actions for a more efficient use of the European policies and tools’.159 The reaction of the European Parliament was much stronger by considering that:160 ‘Lampedusa should be a turning point’ (point 2), underlining ‘the importance of responsibility sharing in the field of asylum, and recommending creating a mechanism based on objective criteria to reduce the pressure on those Member States receiving high numbers of asylum seekers and beneficiaries of international protection, in either absolute or proportional terms’ (point 7), stressing ‘that the relocation of beneficiaries of international protection and asylum seekers is one of the most concrete forms of solidarity and responsibility-sharing’ and advocating ‘developing more initiatives of this kind’ (point 8). The Task Force Mediterranean identified on 4 December 2013 ‘five main areas of action’ among which ‘assistance and solidarity with Member States dealing with high migration pressure’ was by coincidence the last one mentioned as if it was not the priority.161 The actions undertaken under this item were limited to financial assistance (point 5.1). Intra-eu relocation was encouraged but no concrete measure was adopted.162 In a report on implementation made by the Commission on 22 May 2014, it was confirmed that 50 158 See European Parliament, Annex to the legislative resolution legislative resolution of 13 March 2014 on the proposal for a regulation of the European Parliament and of the Council establishing the Asylum and Migration Fund (com(2011)0751 – C7-0443/2011 – 2011/0366(cod)). 159 European Council Conclusions, 24/25 October, Doc. No. euco 169/13, point 48. 160 European Parliament Resolution of 23 October 2013 on migratory flows in the Mediter­ ranean, with particular attention to the tragic events off Lampedusa, 2013/2827(rsp). 161 European Commission, Communication on the work of the Task Force Mediterranean, com(2013)869. 162 See ibid point 5.2.

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M€ of financial assistance have been delivered to Italy (apparently 30M), Bulgaria, Malta, Germany, France, Hungary, Cyprus and The Netherlands without explanations about the sharing of funds between Member States and the criteria used therefore.163 The report also mentioned support programmes coordinated by easo for Greece, Italy and Bulgaria, the use by the Commission of the Early Warning system, and a new pilot project for the supported processing of asylum applications.164 While these steps were taken at European level, the major development actually took place at national level, when Italy decided to launch on 18 October 2013 a major search and rescue operation, Mare Nostrum. This operation, funded by Italy and implemented by its Navy, rescued more than 150.000 persons at sea in one year. It was replaced at the end of 2014 by a joint operation coordinated by Frontex, operation Triton, that is however not identical to Mare Nostrum, as it is not focused on search and rescue and has a smaller geographical area of intervention.165 This radical change of policy by Italy that had previously cooperated with the Gaddafi regime to block the departure of migrants from the Libyan shores and even proceeded to the refoulement of some of them to Libya166 fuelled the debate on solidarity in the fields of migration control and asylum. The passiveness of the eu in addressing the 2013 emergency and the dysfunctional responsibility-allocation system, leads Member States to oppose each other. To date, no objective discussion of what is a fair share of responsibility has ever taken place. Therefore, any claim by a Member States that it is ‘overburdened’ cannot be objectively substantiated, and raises the suspicion among the others, who are also called on to carry part of the protection responsibility. When Member States at eu’s external border ask for help in the name of solidarity to cope with increased arrivals, other Member States do not envisage answering favourably in the name of responsibility. The discussion has turned into a dialogue of the deaf, where half the Member States call for respect of eu law (in particular the fingerprinting of irregular migrants and asylum seekers under the Eurodac regulation), that the Member States at the 163 European Commission, Commission Staff Working Document: Implementation of the Communication on the Work of the Task Force Mediterranean, swd(2014) 173 final. 164 Ibid. 165 On Mare Nostrum and Triton operations, see S. Carrera and L. Den Hertog, ‘Whose Mare? Rule of Law Challenges in the Field of European Border Surveillance in the Mediterranean’ (2015) ceps Paper No. 79. 166 See for example Hirsi Jamaa and Others v Italy Appl no 27765/09 (ECtHR, 23 February 2012).

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external border are not always inclined to respect because of the unequal distributive effect they perceive these same rules to have. Getting out of this situation necessitates a clarification of the requirements of the principle of solidarity and fair sharing of responsibility under Article 80 tfeu. At least two different situations can be distinguished when a Member State fails to comply with its obligations. The first is the one of a Member State under pressure because it receives a number of third country nationals in need of international protection beyond the protection capacity it should have; support seems in that case fully justified on the basis of solidarity. The second is the one of a Member State that is also under pressure but for the reason that it has not developed the facilities, processes and mechanisms it should have according to its protection capacity; support seems in that case not justified on the basis of fair sharing of responsibility. Even if solidarity could nevertheless legally be required in the second case depending on the interpretation of that principle, one understands easily that those two situations are different: in the first case, solidarity seems justified as long as the unfair sharing of responsibility persists; in the second, if solidarity is required despite the irresponsibility of the Member State, it would be limited to the period needed for that Member State to be ready to assume its fair part of responsibility by putting its asylum policy in order. Through an objective assessment of the protection capacity of each Member State, ‘inability to comply’ with one’s obligations would clearly be distinguished from ‘unwillingness to comply’. This would, thus, address the current tensions between Member States in terms of distributing responsibilities. Having this debate obviously requires a determination of what is a fair sharing of responsibility between Member States. Despite some comparison of data made by different organisations,167 this remains undetermined, as a study providing at least the data necessary for a sound discussion has not been undertaken. Most of the figures quoted are absolute and do not reflect the relative impact for each Member State. The capacity that Member States should develop to receive asylum seekers and process their applications has not been calculated or at least made public to our knowledge despite the requirements of Article 29(2) of the recast Reception Conditions Directive and Article 4(1) of the Asylum Procedures Directive. The debate is of course more complicated as not only asylum, but also the control of the external borders should be taken into account, as both generate burdens for Member States and are actually closely interlinked. In other words, the eu institutions, agencies or Member 167 See in particular icmpd, An Effective Asylum Responsibility-Sharing Mechanism, October 2014.

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States do not have a precise idea of who should do what to implement the asylum instruments in line with the requirements of the principle of solidarity and fair sharing enshrined in Article 80 tfeu. The same is true for the elaboration of the legislative framework that is also governed by the same provision. It is striking that the asylum instruments have been recasted after the entry into force of the Treaty of Lisbon without an in-depth debate about the issue of solidarity. The only limited exception is the recast Dublin Regulation, where a specific provision linked to solidarity has been included.168 It is though noteworthy that the goal pursued by the Dublin ‘early warning mechanism’, is less showing solidarity towards the concerned Member State and more ensuring that it remains possible to continue with the application of the Dublin Regulation. Solidarity is thus envisaged as a kind of emergency mechanism aiming at the resolution of a problem by the concerned Member State with the temporary help of the others. As this mechanism has never been used, European solidarity is mainly limited to date to the granting of emergency funding by the European Commission to the Member States successively concerned in relation with crises appearing on the agenda.169 Such short-sighted practice leaves the structural imbalances of the Common European Asylum System unaddressed. 3.3 External Dimension or Europe’s ‘Closed Doors’ When compared with the other three pillars of the system, the external dimension could be characterised as underdeveloped and, especially at its first pha­ ses, disproportionately focused on capacity building and externalisation. It is nevertheless increasingly acknowledged that Europe cannot build a truly comprehensive asylum system in isolation. This is becoming all the more pressing with the Syrian crisis unravelling in the eu neighbourhood. In June 2015, unhcr reported that there are over 4 million refugees from Syria and among them 1.17 million Syrians registered by the agency in Lebanon, and an additional 1.7 million Syrians registered by the Government of Turkey alone.170 This provides a useful perspective to the relative rise in asylum applications in the EU28.171 168 The early warning mechanism in the recast Dublin Regulation, Article 33. See also above Section 2.3 and the contribution of F.Maiani in this volume. 169 For an example of this practice see ‘European Commission Stands by Italy on Coping with Migratory Pressure’, Press release IP/15/4453, 19 February 2015. 170 unhcr, Syria Regional Refugee Response Webpage accessed 15 July 2015. 171 The latest figures released by EUROSTAT reveal that the number of asylum seekers rose to 435 thousand in 2013 and 626 thousand in 2014; this was the highest number of asylum applicants within the eu since the peak in 1992. See EUROSTAT, Asylum Statistics, March

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As previously outlined, two main types of initiatives concerning the asylum system’s external dimension have to date been operationalised and funded at  eu level: Regional Protection Programmes (rpps) and resettlement. Fur­ thermore, there is eu funding to support services and infrastructure of humanitarian admission programmes through the amif, however, lump sums cannot be allocated to Member States in respect of persons admitted under such programmes.172 The relevant issue of legal entry channels to the eu has been brought up often at policy level, but no jointly coordinated operations have taken place. Member States have individually operated, either for limited periods of time, or for limited numbers of individuals, variants of what could be considered ‘protected entry procedures’,173 or legal entry channels for protection seekers to the eu. On top of the fact that no significant protection-specific possibilities to have legal access to the eu territory exist, measures undertaken as part of the implementation of the policy of external migration-management generally fail to safeguard in practice the rights of persons requesting international protection.174 This has the practical consequence of effectively hindering refugees’ access to protection.175 The question of ensuring safe entry requires an examination of how eu and national laws and practice create the conditions 2015 accessed 15 July 2015. 172 See amif Regulation, Recital 46, Articles 7 and 17. 173 There is no eu definition for this term. A study undertaken for the European Commission, defines protected entry procedures as ‘[a]n overarching concept for arrangements allowing a non-national to approach the potential host State outside its territory with a claim for asylum or other form of international protection, and to be granted an entry permit in case of a positive response to that claim, be it preliminary or final’; see G. Noll, J. Fagerlund and F. Liebaut, Study for the European Commission: On the Feasibility of Processing Asylum Claims Outside the eu against the Background of the Common European Asylum System and The Goal of a Common Asylum Procedure (European Commission 2002) 20. 174 For an analysis on this point see: M. Den Heijer, Europe and Extraterritorial Asylum (Hart Publishing 2012) 165–208; V. Moreno Lax, ‘Must eu Borders have Doors for Refugees? On the Compatibility of Schengen Visas and Carriers’ Sanctions with eu Member States’ Obligations to Provide International Protection to Refugees’ (2008) 10 ejml 315; M. Garlick and J. Kumin, ‘Seeking Asylum in the eu: Disentangling Refugee Protection from Migration Control’ in B. Martenczuk and S. Van Thiel (eds), Justice, Liberty, Security: New Challenges for eu External Relations (Brussels University Press 2008) 111. 175 For example, instead of a boost in the number of visas issued to Syrian nationals for humanitarian purposes, the number of Schengen visas issued to Syrian nationals dropped dramatically after the start of the armed conflict in application of eu visa policy rules; see visa statistics from DG HOME reported in fra, Legal Entry Channels (n 86) 3.

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for unsafe journeys, by denying safe access to refugees.176 The denial of safe access is rooted in visa policies and also border control practices.177 The next subsections assess the nature and scope of measures operationalised by the eu under its Regional Protection Programmes and resettlement initiatives. A final subsection comments on the impasse concerning legal entry to the eu for protection seekers and highlights some of the legal and practical challenges for the use of protected entry procedures. 3.3.1 Regional Protection Programmes The implementation of the first two pilot Regional Protection Programmes in the Great Lakes area (Tanzania) and the Western nis (Ukraine, Moldova, Belarus) was evaluated in 2009. The external evaluation concluded that rpps are a successful mechanism to provide more protection for refugees close to regions of origin, but that their impact was limited due to limited flexibility, funding, visibility and coordination with other eu humanitarian and development policies, and insufficient engagement of third countries.178 M. Garlick considers that in terms of outcomes, unhcr noted in both cases progress in capacity building and awareness-raising on asylum issues.179 However, as regards the resettlement component of rpps, achievements were limited, due to the very modest response by the eu with only a few hundreds resettled from both regions.180 She also highlighted, as lessons to be drawn, greater involvement of the countries where the programmes are to be implemented and greater resources in order to achieve impact and visibility.181 ecre, in a more recent appreciation of the implementation of rpps going beyond the pilots, stressed that their scope of activities has usually been very large for a meaningful and targeted intervention.182 It thus proposed rpps be clearer and

176 E. Guild, C. Costello, M. Garlick, V. Moreno-Lax, Study for the libe Committee: Enhancing the Common European Asylum System and Alternatives to Dublin (European Parliament 2015) 21. 177 Ibid 20–25. 178 European Commission, First Annual Report on Immigration and Asylum (2009), com(2010)214, 6 May 2010, 6; see also ghk, Evaluation of Pilot Regional Protection Programmes dg Justice, Freedom and Security, A final Report Submitted by ghk, 2009. 179 M. Garlick, ‘eu “Regional Protection Programmes”: Development and Prospects’ in M. Maes, M.C. Foblets and P. De Bruycker (eds), External Dimensions of eu Migration and Asylum Law and Policy (Bruylant 2011) 379–383. 180 Ibid. 181 Ibid 384–386. 182 ecre, Regional Protection Programmes: An Effective Policy Tool? 2015, 15.

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set a limited number of objectives.183 The organisation also highlighted that rpps have not been sufficiently coordinated with humanitarian aid and development policies in the same countries.184 Therefore, it advanced the idea that rpps could take the form of national or regional protection partnerships with the engagement of Member States, third countries, the European Commission, international organisations and ngos.185 Weary about the need of consistency in the Union’s relations with third countries, the co-legislators included a specific provision in the amif calling for coherence of actions supported with other Union instruments.186 This close collaboration could mitigate the risk that eu funding is directed primarily to migration control and attention is diverted from the acute needs faced by protection seekers and the third countries themselves as well as their populations in hosting large numbers of refugees. The revamped concept of a regional development and protection programme, as implemented in the Middle East seems to be going in that direction. The innovative element of the latter is that it targets not only Syrian refugees, but also vulnerable host communities enhancing their economic opportunities and livelihood capacity. This approach has the potential of engaging more actively third country governments. In addition, funding for this initiative is coming both from the European Commission (DG DEVCO) and individual Member States. Thus, a more significant amount of money has been raised compared to previous rpps, namely 26 million eur, an element that could enhance both the visibility and impact of this joint eu-ms initiative. Given that Union funding under the amif for Union actions, and among them rpps, is relatively limited187 such combination of resources and ‘buy-in’ from individual Member States will be necessary. The impact of this new approach on the ground remains to be seen. However, the eu seems to have it already adopted as a way forward. In its recent eu agenda on migration, the Commission stated that ‘Regional Development and 183 Ibid. 184 Ibid. 185 Ibid 16. According to ecre, these protection partnernships should be connected but not identical to migration dialogues as they have different objectives. 186 See amif Regulation, Article 24. 187 See amif Regulation, Article 20. As ecre stresses the overall amount is less that originally foreseen by the Commission proposal and much less than the funding available for Community Actions under the European Return Fund, the European Refugee Fund and the European Integration Fund combined in 2007–2013; see ecre, Information Note on the Regulation eu (No.) 2014/516 establishing the Asylum, Migration and Integration Fund, April 2015, 11.

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Protection Programmes will be set up or deepened, starting in North Africa and the Horn of Africa, as well as by building on the existing one in the Middle East’.188 It went on to clarify that 30 million eur would be made available in 2015/2016 and called on individual Member States to complement them by additional contributions.189 The other element that could influence the impact of such efforts is a boost in the resettlement component. 3.3.2 Resettlement The creation of a joint eu resettlement programme and eu’s efforts to mobilise more Member States to take part in it is a progress in itself, resettlement being one of the three durable solutions available to refugees, alongside voluntary repatriation and local integration. On a global level, the resettlement needs are much higher than the actual places made available by resettlement countries. In June 2014, unhcr estimated the global resettlement needs for 2015 to be at almost 960,000 persons.190 This represented a substantial increase of 39 per cent compared to the total projected resettlement needs projected for 2014 (approximately 691,000 persons), mainly due to the inclusion of the resettlement needs of Syrian refugees.191 At the same time, resettlement provided a durable solution to around 73,000 refugees during 2014.192 This is less than 1/7 of the refugee population projected by unhcr to be in need of resettlement for that year. In June 2015, the agency estimated the global resettlement needs for 2016 to be at over 1,150,000 persons, an increase of 22 per cent compared to the 2015 figures, and of 66 per cent compared to the 2014 figures.193 It becomes apparent that global resettlement needs have increased exponentially in the last three years. The eu response to those needs has been modest. Despite the fact that more Member States have activated resettlement initiatives/programmes since the launch of the joint programme, the overall numbers of resettled refugees to the eu remain rather low, namely: 4,930 persons in 2012; 4,840 persons in 2013 and 6,380 persons in 2014,194 to which the individuals offered humanitarian admission should be added. As 188 European Commission, Communication on a European Agenda on Migration, com(2015) 240, 5 (emphasis added). 189 Ibid. 190 unhcr, unhcr Projected Global Resettlement Needs 2015, 2014, 9. 191 Ibid. 192 unhcr, unhcr Projected Global Resettlement Needs 2016, 2015, 9. 193 Ibid 12. 194 See EUROSTAT, Resettled Refugees: Annual Data, accessed 19 July 2015.

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outlined above, the bulk of such places have been pledged by Germany (20.000 since 2013).195 unhcr reported that during 2014, 4,554 dep­arted under humanitarian admission programmes to Austria, France, Germany and the United Kingdom.196 Still, these numbers are limited, even when we consider the places offered for humanitarian admission and the increase of ‘spontaneous’ arrivals, when compared with the level of displacement the Syrian crisis alone has caused in eu’s neighbourhood. The amif provides funding for resettlement activities, both in terms of supporting Member States’ national programmes (for example training of staff and development of infrastructure), and in terms of a lump sum per resettled person that is increased when it concerns people falling under the common eu priorities.197 Nevertheless, the development of activities around resettlement, as part of national programmes, in the Fund is optional.198 To date, this has led 13 Member States not being involved at all in resettlement activities,199 or others being involved with a very limited number of persons, despite the enhanced financial incentives amif offers. Bearing in mind that resettlement and humanitarian admission are the main channels for legal entry, it becomes apparent that the eu’s modest contribution and the complete inactivity of many of its Member States, undermines its credibility as a global protection actor, including its activities in building the protection capacity of third States and advancing arguments of refugees’ local integration in the region. Put simply, when these activities are not coupled with a more significant resettlement component or other legal means of entry to the eu, they can easily be perceived by third country governments as mere containment tools. 3.3.3 Protected Entry Procedures Apart from resettlement and humanitarian admission, other legal entry channels to the eu for protection seekers remain extremely underdeveloped. Protected entry procedures (peps), especially if they are run on a permanent basis, raise a number of practical considerations and legal issues. Regarding 195 See above Section 2.3 for Member States’ pledges for humanitarian admission. 196 unhcr, unhcr Projected Global Resettlement Needs 2016 (n 193) 15. 197 See amif Regulation, Articles 7 and 17 and analysis above Section 2.3. 198 See amif Regulation, Article 19 (1) (a). 199 In 2014 the following Member States did not resettle a single person according to EUROSTAT: Bulgaria, Czech Republic, Estonia, Greece, Croatia, Italy, Cyprus, Latvia, Lithuania, Malta, Poland, Slovenia and Slovakia accessed 19 July 2015.

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their operationalisation, Member States are concerned by the level of resources they would need to make available at their embassies in order to proceed to a (preliminary) examination of claims. Further obstacles are the waiting time and the safety of protection seekers while this processing is taking place. peps raise in addition several legal issues. It is clear that the recast Reception Conditions and the Procedures Directive, although they might be a source of inspiration, are not applicable in this case.200 The non-applicability of those asylum Directives does not mean though that the human rights obligations of Member States linked with the prohibition of the non-refoulement principle, or relevant provisions of the eu Charter of Fundamental Rights, are not ­applicable.201 A study undertaken by the Odysseus Network for the European Parliament in 2010 underlined that full assessments of asylum claims should not be conducted at embassies as there would be insurmountable difficulties of providing access to procedural rights and most notably to an effective ­remedy.202 Moreover, any such schemes are without prejudice to the right to seek asylum in the eu; they would thus complement the ceas by providing legal ways of access to eu territory, but would in no way obliterate Member States obligations vis-à-vis refugees who arrive on their territory. The above considerations have so far halted policy discussions around widescale schemes of extraterritorial processing. If such schemes simply yield additional refugees for Europe without alleviating current arrival pressures, the political incentive for Member States to invest in the idea might be lost.203 Other operations have taken place on a smaller scale, for example the humanitarian admission programmes of Germany concerned a specific number of persons, and for limited periods of time, for example the extended family 200 See Directive 2013/33/EU of 26 June 2013 laying down standards for the reception of applicants for international protection (recast), oj L180/96, (Recast Reception Conditions Directive); Directive 2013/32/EU of 26 June 2013 on common procedures for granting and withdrawing international protection (recast), 29 June 2013, L 180/60 (Recast Procedures Directive) as well as analysis on this point in the contribution of L. Tsourdi in this volume, The European Union Reception Conditions: A Dignified Standard of Living for Asylum Seekers? 201 See for example Hirsi Jamaa and others v Italy Appl no 27765/09 (ECtHR, 23 February 2012); eu Charter of Fundamental Rights, Article 51; and V. Moreno-Lax and C. Costello, ‘The Extraterritorial Application of the eu Charter of Fundamental Rights: From Territoriality to Facticity, the Effectiveness Model’ in S. Peers, T. Hervey, J. Kenner and A. Ward, The eu Charter of Fundamental Rights (Beck/Hart/Nomos 2014) 1657–1683. 202 P. De Bruycker et al, Study for the European Parliament: Setting up a Common European Asylum System: Report on the Application of Existing Instruments and Proposals for the New System (European Parliament 2010) 455–457. 203 M. Garlick, ‘The Potential and Pitfalls of Extraterritorial Processing of Asylum Claims’ Migration Policy Institute (March 2015).

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reunification programme of Ireland lasted for 2 months.204 This means that the majority of protection seekers are left with no choice but to risk their lives in order to access protection. 4

The Common European Asylum System in the Future

Without playing the dangerous game of predicting the future, the following part underlines what are some of the main challenges that the eu will face in the future regarding the evolution of European Asylum Support Office, the debate around solidarity and the external dimension of the Common European Asylum System, by mirroring the previous part of this paper where the developments of those elements up to date have already been analysed. 4.1 Perspectives about the European Asylum Support Office Expectations about the easo at the moment of its creation on 19 May 2010 were extremely high. In the preamble of the founding Regulation, the legislator expressed its intention by establishing a European Asylum Support Office (easo) is ‘to increase coordination of operational cooperation between Member States so that the common rules are implemented effectively’ (point 3) and that ‘practical cooperation on asylum aims to increase convergence and ensure ongoing quality of Member States’ decision making procedures’ (point 5) while the remaining ‘great disparities between the Member States in the granting of international protection […] should be reduced’ (point 2). Finally, ‘the Office should support the development of solidarity within the Union to promote a better relocation of beneficiaries of international protection between Member States’ (point 7). Where are we after 4 years after the easo started to function? The common rules on asylum are (of course) not always implemented effectively, it is clear that great disparities remain between Member States and obvious that solidarity did not develop through relocation due to the easo. But, firstly, nobody could predict the enormous increase of migrants crossing the Mediterranean Sea due to the conflicts in Libya and Syria. The development of the asylum crisis that the eu is facing to the extent it became an issue for hours of tense night time discussions in the European Council,205 must obviously be taken into consideration when assessing the performance of the easo. Secondly, too 204 See analysis above in Section 2.3. 205 Referring to the discussions taking place in view of the adoption of European Council Conclusions of 26 June 2015, European Council, European Council meeting (25 and 26 June 2015) – Conclusions, Council Doc. euco 22/15, co eur 8.

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high expectations should not lead to low evaluation. The results achieved in 4 years by a brand new Agency must be assessed by being aware of the difficulties of building a new agency starting almost from scratch.206 This is the overall framework within which the beginnings of the short existence of easo and its first achievements have to be evaluated. Regarding practical support which is the most important task of the agency up to date, the area of training provides a good example of cooperation between Member States and the easo where both levels rely on each other; while the Agency aims at helping Member States by providing them training tools that they need about eu asylum law, it cannot function without the support of Member States who are asked to provide to the Agency trainers for the European pool to be created. This is actually true for most of the activities of easo and evaluating the Agency should therefore also include an assessment of the readiness of Member States to contribute to its activities. One challenge regarding training is linked to languages. easo is still offering its tools mainly in English, while most Member States need to provide training in their national language. Costs could be limited by providing, when possible, training at regional level for some Member States, in particular when they share the same language. However, in the current system of parallel competences between easo and the Member States, it is logically still up to the latter to provide translations in their own language. It will be interesting to see how the activities of the easo in the area of coi will be evaluated. Many key countries for the asylum policy seem to have been covered by the current activities of the Agency in this area. Due its limited capacity to produce its own coi reports, the agency could consider developing a procedure to endorse national reports produced by Member States particularly knowledgeable about certain third countries, knowing however that language would once again remain a problematic issue for their use throughout the eu. Regarding the coi portal, the number of national databases connected may seem very low for the eu, but it must be related to the number of Member States having a national database that could be linked. The adoption of an External Action Strategy by the easo cannot hide 206 Those difficulties have been very well described precisely by the current Director of the easo and are not only about launching the activities of the agency in order to start fulfilling its tasks, but also related to the creation of a brand new administration regarding recruiting personnel, buying equipment, etc, all kind of things to be done within the respect of rules made for the functioning of an existing administration but not for the establishment of a new one; see R. Visser, ‘Naissance d’une agence: le cas d’easo’ (2013) 3 Revue du droit de l’Union européenne 441.

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the fact that the action of the agency in this area has been extremely limited, even if it may seem logical for an institution with limited means to decide focusing on its internal tasks during the first years of its existence. However, the lack of attention paid by easo for the issue of resettlement is not in line with its founding regulation that prioritises it under Article 7, 2nd indent through the coordination of exchanges of information and other actions taken by Member States. The support for Member States subject to particular pressure that is the second main task of the easo corresponds to a much more difficult field that is actually at the core of the debate on solidarity in the field of asylum. What appears striking is that easo did not try to define on an objective basis the notion of particular pressure. Even if this may seem difficult about a point that became one of the most controversial of the European Union policies during the first years of functioning of the easo, one can regret the lack of production by a technical agency like the easo of data and of statistical analysis about the reception capacity of Member States in absolute but also relative terms, that could have been a basis to objectivise as much as possible the political debate, especially about relocation. Supporting the implementation of the ceas is the third main task of easo. The production of documents for this purpose has been slower, but this seems understandable in terms of priorities. One fundamental element is the absence of adoption by the easo of guidelines related to eu asylum law in order to try to reduce disparities in implementation of eu legislations between Member States apart of the general practical guides that have been published. The best example is about the Syrian crisis. If the easo underlined clearly that the type of status given to Syrians asylum seekers varies enormously between Member States with 51% getting the refugee status and 43% subsidiary protection,207 without good explanation, one can regret that their situation has not been the object by the agency of an ‘analysis with a view to fostering convergence of assessment criteria’ as explicitly foreseen by Article 4, point (e) of its founding regulation. The European Commission considered that: evidence from a specific assessment undertaken on the basis of three meetings of practical cooperation organised by the easo in the context of the Syrian crisis did not yield a final statistical conclusion on whether

207 EUROSTAT, ‘Asylum Applicants and First Instance Decisions on Asylum Applications in 2014’, at 11 .

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the meetings achieved their objective by reducing the variance of recognition across the eu.208 If the ongoing external evaluation would confirm that this objective has not been met, such conclusion would be a fundamental element to take into consideration for the discussions on the future of easo and the strengthening of its mandate on this specific point, at least by deleting in Article 12(2) of easo Regulation the sentence following which: ‘[t]he documents shall not purport to give instructions to Member States about the grant or refusal of applications for international protection’. Access of civil society to activities and documents raises concern. Actually, as transparency is also important for the agency itself, as it relies sometimes on the support of ngos active in the field of asylum, a possible deficit in the sense of mutual benefit as those organisations may think that support works only in favour of the easo, should also be a concern for the agency. One possible way to better involve the ngos in the functioning of easo would be include them in the chair of the consultative forum, as it is the case in Frontex where the Director of that agency is not presiding the Forum. ‘Support is our mission’ is the motto chosen by the Agency. But supporting whom? The right answer given to this question is of course that easo supports Member States. This is not its choice but its legal mission following its founding Regulation. But who supports refugees? One will of course think of unhcr and ngos. easo has indeed very few missions supporting directly refugees, except resettlement within which the agency has almost not invested. In particular, it is noticeable that easo is not in charge of promoting the respect of the right to asylum enshrined under Article 18 of the eu Charter of Fundamental Rights. Does it really mean that easo does not support refugees? Such question requires of course a less simplistic answer than the one suggested above. This is obvious regarding what the agency is doing in the field of quality, but it is clear that decisions taken by case officers who are better trained and use better coi due to the action of easo will also indirectly benefit refugees. The evolution of the situation in Greece provides another good example of this. The asylum crisis in that Member State has been a real challenge for the eu as it has not been about supporting its asylum system but actually building it. The evolution seems to go in the good direction as Greece had in 2014 a recognition rate (refugee and subsidiary protection status) of close to 29% at first instance

208 Commission on the internal evaluation of the easo (n 90) 13.

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compared to close to zero before 2011.209 Even if the easo is not the only actor helping Greece, the agency played a role. The ongoing evaluation should tell us exactly which one, in particular to which extent it can provide emergency support and if its mission is not fundamentally oriented on the long-term. Following Article 4 of easo founding regulation, ‘the Support Office shall fulfil its purpose in conditions which enable it to serve as a reference point by virtue of its independence, the scientific and technical quality of the assistance it provides and the information it disseminates […]’. Without entering in the complex debate on the meaning of the notion of independence or autonomy of European agencies,210 one may wonder towards whom the agency must be independent. The current Director of the easo considers classically that it refers to the Commission.211 However, one should not forget that following Article 31(1) of the easo Regulation: ‘[t]he Support Office shall be managed by its executive Director who shall be independent in the performance of its duties’ as well as that: ‘[t]he executive Director shall be accountable to the management board for its activities’ while the second paragraph adds that ‘[w]ithout prejudice to te powers of the Commission, the Management board […], the Executive Director shall neither seek or take instructions form any governement […]’. No matter which subtle check and balance these provisions try to establish legally between the organs of the agency, it is clear that the independence of the agency can in fact hardly be ensured towards Member States as the Manage­ ment Board is made almost exclusively of their representatives. The same is the case about the Managment Board chair. The first Director of the agency was also previously Head of a Member State national administrative body. Despite that this may seem logical as easo is mainly in charge of activities belonging to Member States implementing powers under eu law, the mechanism for early warning, preparedness and crisis management included in the recast Dublin Regulation shows that the agency has already acquired competences bordering monitoring of Member States. Even if the role of the agency remains limited to informing without deciding, will it be able to continue obtaining information from Member States, knowing that its analysis could be used in review processes involving them? As the need for such function will 209 See Ministry of Public Order and Citizen Protection, Statistics of the New Greek Asylum Service for 2014 accessed 26 July 2015. 210 See S. Carrera, L. Den Hertog and J. Parkin, ‘The Peculiar Nature of eu Home Affairs Agencies in Migration Control: Beyond Accountability Versus Autonomy’ (2013) 15 ejml 337. 211 Visser, ‘Naissance d’une agence’ (n 206) 443.

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probably increase, it will progressively place the easo at the core of an intrinsic contradiction between its mission and its governance structure. Remem­ bering the motto chosen by the agency, the question is actually if the easo will be able to support the eu. 4.2 Perspectives on Solidarity The political debate underwent a sudden acceleration after a new shipwreck on 18 April 2015 causing the death of around 700 persons. In the aftermath, the Commission presented a ten-points plan, among which: reinforcing the joint operations in the Mediterranean by increasing the financial resources and the number of assets and extending their operational area; easo deployment of expert teams in Italy and Greece for joint processing of asylum applications; consideration of options for an emergency relocation mechanism; and an eu wide voluntary pilot project on resettlement.212 eu ministers decided to take work forward regarding ‘a fairer sharing of responsibilities regarding resettlement and relocation projects’. On 23 April, the European Council decided to ‘reinforce internal solidarity and responsibility’, in particular ‘to increase emergency aid to frontline Member States and consider options for organising emergency relocation between all Member States on a voluntary basis’; to ‘deploy easo teams in frontline Member States for joint processing of asylum applications, including registration and finger-printing’; as well as to set up a first voluntary pilot project on resettlement across the eu.213 These immediate commitments were followed by the adoption of a European agenda on migration by the Commission,214 where it announced its intention to propose a temporary relocation scheme for persons in clear need of international protection on the basis of a distribution key based on criteria such as gdp, size of population, unemployment and past numbers of asylum seekers. This was quickly followed by a Commission proposal establishing provisional measures in the area of international protection for the benefit of Italy and Greece.215 It proposed relocating 40,000 asylum seekers from Greece and 212 See European Commission, Press Release: Joint Foreign and Home Affairs Council: Ten Point Action Plan on Migration, IP/15/4813, 20 April 2015 accessed 12 August 2015. 213 See European Council, Special meeting of the European Council, 23 April 2015 – Statement accessed 12 August 2015. (emphasis added). 214 European Agenda on Migration (n 188). 215 See European Commission, Proposal for a Council Decision establishing provisional measures in the area of international protection for the benefit of Italy and Greece, com(2015)286, 27 May 2015.

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Italy within a period of 2 years as from the date of entry into force of the decision between all eu Member States on the basis of a distribution key. Only asylum seekers who belong to a nationality for which the first instance recognition rate is at least of 75% are eligible. Relocation would be mandatory for the Member States as well as for the asylum seekers. This proposal generated a tense debate that focused on the mandatory or voluntary character of the system. After a long night of discussions on 25 June 2015, the European Council decided that ‘all Member States will agree by consensus by the end of July on the distribution of such persons, reflecting the specific situations of Member States’, meaning that the mechanism will not anymore be mandatory for the Member States.216 The Ministers for Justice and Home affairs found, on 20 July 2015, a complex arrangement made of an amended version of the decision proposed by the Commission together with a ‘resolution of the Representatives of the Gover­ nments’.217 Through the use of such instrument, the Member States want to emphasise that they consider the number of persons to be relocated, as well as the distribution of persons between them, as a subject for intergovernmental cooperation and not an eu competence. Although they confirmed the objective of relocating a total of 40,000 persons, they only managed to agree to relocate in a first phase 32,256 persons. The rest should be agreed by December 2015. Even if the distribution key proposed by the Commission has formally been rejected, it seems that it has nevertheless been taken into consideration by the Member States to a certain extent. Some Member States will even relocate more persons than the number proposed by the Commission following the envisaged distribution, but two Member States (Austria and Hungary) refused to participate to the mechanism altogether. Contrary to what was expected, the figures do not indicate a divide between West and East as most of the Member States from central and Eastern Europe have accepted to relocate more persons than the numbers envisaged by the Commission on the basis of its distribution key. The pace of acceleration of the European political debate in a few months is impressive, in particular the fact that it now includes the issue of fair responsibility sharing that was previously set aside in the general debate over solidarity. While some observers may link it to the habit of the eu to progress 216 See European Council, European Council meeting (25 and 26 June 2015) – Conclusions (n 205), point 4 (b). 217 See Council of the European Union, Resolution of the Representatives of the Governments of the Member States meeting within the Council on relocating from Greece and Italy 40 000 persons in clear need of international protection, Council Doc. No. 11131/15, 22 July 2015.

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in response to crises and emergencies, and the increase of the inflow of migrants in 2014–15, it may also be catalysed by the fact that the new ‘Juncker’ Commission is willing to take a more active stance and has included migration in its top priorities. The most interesting development is certainly the recognition of a need for a fairer sharing of responsibilities in liaison with relocation. Even if other traditional measures like financial and operational sharing are evoked, the issue of relocation is now at the core of the political debate. The Commission managed to convince the European Council to consider relocation as ‘emergency’ option but failed to make it a mandatory mechanism for Member States. This is certainly a breakthrough in the European debate on intra-eu solidarity where the issue of fair sharing of responsibility is now at the forefront of the political debate for the first time. However, the relocation mechanism presents some flaws and ambiguities. Firstly, there is a flaw about the way the number of 40,000 persons to be relocated has been calculated. Despite the explanations given about a supposed calculation under point 18 of the preamble of the Council decision, this figure seems to be the arbitrary result of a political choice, rather than the result of an attempt to evaluate the number of persons that should be relocated from Italy and Greece in view of a fair-sharing of responsibilities. The fact that the mechanism is static with a cap of a maximum number of persons to be relocated, rather than dynamic and subject to changes in relation with the variations of the flows of migrants arriving in Greece and Italy within the next two years, risks creating problems. It will be difficult to explain the need to relocate more persons during that period, in the case of an increase of arrivals. Secondly, there is ambiguity around the mechanism of relocation that is related to the previous flaw. The Council of Ministers insists upon the fact that: Italy and Greece should provide structural solutions to address exceptional pressures on their asylum and migration systems. The measures laid down in this Decision should therefore go hand in hand with the establishment by Italy and Greece of a solid and strategic framework for responding to the crisis situation […]. In this respect, Italy and Greece should each on the date of entry into force of this Decision, present a roadmap to the Commission which should include adequate measures in the area of asylum, first reception and return enhancing the capacity, quality and efficiency of their systems in these areas […] with a view to allow them to better cope […] with a possible increased inflow of migrants on their territories.218 218 Ibid Recital 12.

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This looks like a request addressed to Greece and Italy to solve themselves their structural problems with the hope that those Member States will make sufficient progress during the two years period of implementation of the relocation process. Moreover, the fact that the distribution among the Member States of the 20,000 persons that the eu decided to resettle from third countries in the eu has been more easily accepted than the relocation mechanism proposed simultaneously, shows that progress still has to be made regarding the acceptance of the principle of fair sharing of responsibilies inside the eu. All these elements may announce difficult discussions when the European Commission, that considers that there is a need for a permanent system of sharing the responsibility for large numbers of refugees and asylum seekers, will present at the end of 2015 its proposal for a mandatory and automatically-triggered relocation system. The involvement of the European Parliament through the ordinary co-decision procedure will make those discussions even more difficult while the use of article 78(3) tfeu as a legal basis for the temporary decision only required the consultation of the Parliament. Finally, there are very divergent views about the mandatory or voluntary character of the relocation mechanism hiding a lack of clarity about what is needed. The proposal for a Council decision made by the Commission was built on the principle of ‘double mandatoriness’ (meaning both for the State and the concerned person) instead of ‘double voluntariness’ that had been favoured until that moment by the eu. The Council refused the mandatory character of relocation for Member States, but kept it regarding asylum seekers. However, the Ministers consider in the preamble that: in order to decide which specific Member State should be the Member State of relocation, specific account should be given to the specific qualifications and characteristics of the applicants concerned, such as their language skills and other individual indications based on demonstrated family, cultural or social ties which could facilitate their integration into the Member State of relocation/[…] With due respect of the principle of non-discrimination, Member States of relocation may indicate their preferences for applicants based on the above information on the basis of which Italy and Greece, in consultation with easo […] may compile lists of possible applicants identified for relocation to that Member State.219 219 Ibid Recital 25.

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Due to the recommendations of previous studies that relocation should be voluntary for the asylum seeker,220 one must hope that Member States will really try to identify the best Member State of relocation for the asylum seekers, who will however formally not be asked about their preferences, or give their consent to relocation. It would be interesting for the eu to look at the idea of ‘Tradable refugee-admission quotas’ that have been proposed as a tool to reform the eu asylum policy.221 Secondary movements of asylum seekers created by the mandatory character of the relocation mechanism would be a very negative element in the future debate about relocation. The future will show if there will be a boomerang effect through what is planned as advancing European solidarity. The rise in importance of physical sharing with relocation may influence developments in operational and financial sharing, however in different ways. The relocation process will most likely prove complicated and demanding in terms of resources. The Council decision envisages therefore providing those Member States more operational support. Interestingly, its Article 7 foresees as activities: the screening of third-country nationals arriving in Italy and Greece, including their clear identification, fingerprinting, and registration, and, where applicable the registration of their application for international protection and, upon request by Italy and Greece, their initial processing. The implementation of relocation will probably have as consequence an increase of the role of agencies and a strengthening of their prerogatives. This would especially be the case if the Asylum Support Teams coordinated by easo were asked to contribute to the initial processing of asylum requests in order to determine if the applicant should be relocated. Such a form of ‘joint processing’ that has up to date only been tested by the Agency222 could become a reality quicker than expected due to the circumstances. The upcoming evaluation of easo would afterwards be the occasion to include such tasks formally in its mandate through a revision of its Regulation. Financial support to Greece and Italy will certainly also continue to increase due to the 220 See above, Section 3.2. 221 H. Rapoport and J. Fernandez-Huertas Moraga, ‘Tradable Refugee-Admission Quotas: A Policy Proposal to Reform the eu Asylum Policy’ (2014) eui Working papers No. 2014/101, Robert Schuman Centre for Advanced Studies. 222 See above, Section 3.1.

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fact that the relocation process will be expensive and the transfers will have to be paid by Greece and Italy. However, this will probably happen in practice without a plan to make more strategic use of European funding in view of more solidarity.223 4.3 Perspectives on the External Dimension The underdevelopment of the external dimension of the ceas to date attests the eu’s reluctance to assume its role as a global protection actor. However, the Syrian refugee crisis unfolding right at the eu’s doorstep, is forcing it to gradually take more decisive action. Although eu’s response is not yet commensurate to the challenges raised by the Syrian crisis, there is an increasing understanding that it is necessary to step up efforts in at least two broad areas: establishing partnerships with third States in protection matters, and ensuring greater access to the eu territory for protection seekers. The next subsections raise legal and policy perspectives in this respect. 4.3.1 Establishing Meaningful Partnerships with Third States A great share of criticism of rpps was directed to the lack of involvement of third country governments and of sense of ownership of local actors. Therefore, a necessary prerequisite for making partnerships with third states meaningful, is that the development of any initiatives should be undertaken in full cooperation with the countries in the region who should have a say in the establishment of priorities and dispersal of resources. One way to achieve this could be the establishment of ‘national or regional protection partnerships’ as ecre proposed.224 More broadly, as stressed by the European Parliament in a Resolution of 28 April 2015, there is a need for a holistic approach on the one hand, targeting the root causes of underdevelopment and violence in countries of origin, and on the other, enhancing the rule of law, protection capacity and governance structures for countries in the region.225 The links between international protection and development were already highlighted in the gamm,226 and echoed in the European Agenda on Migration.227 223 See above, Section 3.2.2. 224 See analysis above in Section 3.3.1. 225 See European Parliament, Joint Motion for a resolution on the latest tragedies in the Mediterranean and eu migration and asylum policies, 2015/2660(rsp), 28 April 2014, paras 12,15. 226 See gamm (n 69). 227 See European Agenda on Migration (n 188).

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Attention and resources should be devoted to enhancing the protection capacity and at the same time, the economic development and stability of the countries that host large numbers of refugees. Therefore, the financing of rpps should be boosted and they should include a well-developed and resourced local development component. The only means to achieve this is to combine amif funding with development funding and Member States contributions, as was the case for the rpdp in the Middle East. This would help to somewhat alleviate pressures on national resources, avoid destabilisation of local societies and competition with refugee communities for access to basic services. Ultimately though, the effectiveness of such efforts is also dependent on providing access to the eu territory to a higher number of forcibly displaced persons, which is the focus of the next subsection. In this respect, the signs from the Khartoum process are not that positive. Although a lot of emphasis was placed on ‘mutual partnership and shared responsibility’, the Ministers focused overwhelmingly on combatting crime and capacity-building without even mentioning resettlement and legal entry for protection seekers.228 4.3.2 Ensuring Access to Protection229 Greater access to protection can be enhanced by boosting eu’s commitment to resettlement in terms of numbers of Member States activated, as well as in terms of overall pledges. The eu has recently moved in this direction, as part of the ‘European agenda on migration’ in response to the high death toll in the Mediterranean. Therein, the Commission noted that ‘the eu has a duty to contribute its share in helping displaced persons in clear need of international protection’.230 It added that: [s]ome Member States have already made a major contribution to global resettlement efforts. But others offer nothing – and in many cases they are not making an alternative contribution in terms of receiving and accepting asylum requests or helping to fund the efforts of others.231 228 Declaration of the Ministerial Conference of the Khartoum Process (eu-Horn of Africa Migration Route Initiative), Rome, 28 November 2014. 229 This subsection analyses ‘access to protection’ understood as legal access to the territory; the different issue of accessing an adequate level of protection in terms of asylum procedures and reception conditions for those who have already reached the eu territory, is beyond its scope. 230 See European Agenda on Migration (n 188) 4. 231 Ibid.

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In order to put these policy ideas into action, the Commission adopted a Recommendation.232 This instrument called for the development of an euwide resettlement scheme to offer 20.000 places on the basis of a distribution key, during the course of a 2-year period from the date of adoption of the Recommendation. The Commission envisaged contributing to the scheme by making available an extra eur 50 million in the years 2015 and 2016 under the Union Resettlement Programme part of the amif.233 The distribution key proposed was based on the same four indicators as those for relocation.234 The Commission thus sought to ensure not only that all Member States are activated, but also that their contribution be commensurate to objective indicators. This is an important departure from the completely voluntary approach on resettlement that had been established thus far, which led to the complete inaction of some Member States.235 It is noteworthy that the Commission foresaw that Member States conduct a formal procedure for international protection on the basis of the asylum acquis, including the taking of fingerprints for those resettled. This process could result either in the grant of international protection or a national protection status. The Commission highlighted that: [i]n that context, free movement within the Union should be submitted to the same conditions and restrictions applicable to other third country nationals legally resident in the Member States. It added another Article stressing that those who move without authorisation would be returned to the Member State of resettlement. The Commission was therefore anxious to ensure that the rules of the recast Dublin Regulation apply, in order to avoid secondary movements of refugees resettled to the eu through this scheme. During the June 2015 European Council meeting, all Member States agreed to participate ‘including through multilateral and national schemes in the resettling of 20.000 displaced persons in clear need of international protection, reflecting the specific situations of Member States’.236 This commitment was 232 See European Commission, Recommendation of 8 June 2015 on a European resettlement scheme, C(2015) 3560 final. 233 Ibid Recital 14. See also amif Regulation, Article 17 and above Section 3.3. 234 European Commission, Recommendation on a European resettlement scheme (n 232), Recital 9. 235 See above Section 3.3 for statistics. 236 See European Council, European Council meeting (25 and 26 June 2015) – Conclusions (n 205), point 4(e).

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concretised in July 2015 when the jha Council adopted ‘conclusions of the Representatives of the Governments of the Member States’ on this issue.237 Once again,238 the choice of instrument points to a Member State preference for intergovernmental cooperation in this area. In these conclusions, Member States rejected an explicit mention to a distribution key and opted instead for voluntary pledging. When comparing Member States’ final pledges, with what was proposed by the Commission, we note three different trends. Firstly, 6 eu Member States pledged for resettling a higher number of refugees than according to the key.239 On the other hand, 17 Member States pledged for resettling less or even significantly less that what was foreseen.240 Although some Member States could be considered as having valid reasons to do so,241 others most probably chose this stance to contest the criteria. Finally 5 Member States pledged the exact number that was foreseen by the key.242 We thus observe that Member States are divided about the validity of the proposed distribution. It is impressive that all Member States, with the sole exception of Hungary, as well as the associated states, participated in the scheme.243 The total number of pledges, including those undertaken by the associated states, went beyond what was targeted, reaching 22.504 individuals. In terms of boosting the numbers of Member States activated in resettlement this marks a real progress, with even Greece and Italy who benefit from relocation measures participating in the scheme. Nevertheless, one must not lose sight of the rather conservative numerical target that had been set from the beginning, which fares very poorly as a combined contribution of 31244 countries. 237 European Council, Conclusions of the Representatives of the Governments of the Member States meeting within the Council on resettling through multilateral and national schemes 20000 persons in clear need of international protection, Council Doc. 11130/15, 22 July 2015. 238 See above Section 4.2. 239 Namely Austria (1.900 instead of 444); Belgium (1.100 instead of 490); Denmark (1.000 instead of 345); Greece (354 instead of 323); Ireland (520 instead of 272) and the Nether­ lands (732 instead of 1.000). 240 These were: Bulgaria, Croatia, the Czech Republic, Estonia, Germany, Hungary, Latvia, Lithuania, Luxembourg, Malta, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and the uk. 241 For example Germany has already single handedly offered 30.000 places of humanitarian admission and pledged 1.737 more places than requested for the relocation scheme. 242 Namely: Cyprus, Finland, France, Italy and Sweden. 243 European Council, European Council meeting (25 and 26 June 2015) – Conclusions (n 205), Annex. 244 We note again the refusal of Hungary to participate in the scheme; thus this number is made up of 27 Member States and 4 associated States.

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Moreover, the conclusions no longer mention asylum processing after resettlement has taken place, and granting of the rights attached to the refugee status or subsidiary protection. Instead, the terminology employed is the following: [t]o resettle […] with objective of protecting them against refoulement and admitting and granting them the right to stay and any other rights similar to those granted to a beneficiary of international protection or in case of a Member State bound neither by Directive 2011/95 nor by Directive 2004/83, in line with the Geneva Convention on the Status of Refugees. One may wonder if Member States who are bound by the asylum acquis can offer lesser rights to persons who fulfill the criteria of an international protection beneficiary, merely on the basis of their mode of entry to the eu, i.e. legal entry through resettlement. Therefore, the practice of Member States on this point will need to be monitored during the operationalisation of this scheme. Thinking beyond the particular scheme on future perspectives, linking pledges to objectively verifiable indicators could constitute a basis for rationalising the level of individual Member States’ involvement. In order to boost numbers, apart from state-sponsored refugees, Member States could also explore schemes that entail private sponsorship, both by family members and relatives, but also by individuals, churches or associations unrelated to the refugee, as is already the case in the us and Canada.245 The further use of humanitarian admission should also be explored. Current forms of such national programmes could be conceptualised as an ad-hoc operationalisation of the Temporary Protection Directive, an instrument that has not been activated since its adoption.246 The activation of such ­programmes has facilitated the entry of Syrians, making use of expedited pro­ cessing tools and procedures,247 and avoiding an overload of the national 245 See information on refugee sponsorship schemes in the website of the government of Canada accessed 20 July 2015 and the website of the us State Department, Bureau of Population, Refugees and  Migration accessed 20 July 2015. 246 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 L 212/12 (Temporary Protection Directive). 247 See International Catholic Migration Commission (icmc), ‘10% of Refugees from Syria: Europe’s Resttlement and Other Admission Responses in a Global Perspective’, 2015, 35–38.

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decision-making bodies. Nevertheless, by failing to activate the Temporary Protection Directive, a number of its features remain inoperable,248 such as the obligation to facilitate entry for members of the group to be protected irrespective of its size,249 and the intra-eu responsibility-sharing arrangements that include financial support and envisage the transfer of beneficiaries within the eu.250 Another possible development could be an agreement, in collaboration with unhcr and a number of countries such as the us, Canada, Australia and further counterparts, on a global protection scheme, whereby organising the orderly transfer to their territory of large numbers of refugees who have found temporarily protection in the neighbouring countries whose capacities are now reaching the point of exhaustion.251 This could resemble the Humanitarian Evacuation Programme from fyr Macedonia of refugees from Kosovo that took place in 1999.252 The practical and legal obstacles that wide-scale extraterritorial processing programmes in transit facilities pose,253 make it less likely that such initiatives will be enacted in the near future. However, issuance of the so-called humanitarian visas, i.e. visas with limited territorial validity, which are valid usually only in the Member State that issued them even in the Schengen area, could be expanded as a mean to allow legal entry for protection seekers to the eu.254 Rules around this type of visa are already included in the Visa Code but could be refined in the ongoing negotiations for the amendment of this instrument.255 Other policy proposals in this respect include establishing a mechanism to suspend visa requirements altogether for a period of time, until the 248 See Temporary Protection Directive, Articles 8–19. 249 See Temporary Protection Directive, Article 8(3). On the contrary, Member States apply numerical ceilings on the number of beneficiaries of such schemes. 250 See Temporary Protection Directive, Articles 24–26. 251 See also G. Jackson, ‘un’s François Crépeau on the Refugee Crisis: Instead of Resisting Migration, Let’s Organise it’, The Guardian (London, 22 April 2015). 252 On the Humanitarian Evacuation Programme, see A. Skordas, ‘Council Directive 2001/55/ EC’ in K. Hailbronner (ed), eu Immigration and Asylum Law: A Commentary (Beck/Hart/ Nomos 2010) 822 and J. Van Selm (ed), Kosovo’s Refugees in the European Union (Pinter 2000). 253 See above, Section 3.3 for analysis. 254 See also U. Iben Jensen, Study for the libe Committee: Humanitarian Visas: Option or Obligation (European Parliament 2014). 255 European Commission, Proposal for a Regulation on the Union Code on Visas (Visa Code), com(2014) 164.

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root causes of forced displacement from a refugee-producing country have been addressed.256 Finally, there is another line of thinking that could potentially form the basis of developments at eu level, that of viewing migration as a ‘fourth solution’ to complement the conventional three durable solutions, so as to end entrapment in protracted displacement.257 Long advances that two possible approaches could be developed in this sense; firstly, facilitating refugees’ equal access to existing migration channels when they are otherwise qualified, by removing barriers that are specific to their situation, such as limited access to travel documents or inability to provide a financial guarantee.258 Secondly, opening new channels for legal movement that actively target refugee communities, such as encouraging regional free movement, or developing schemes of temporary migration.259 fra, referring specifically to the eu policy framework, proposed Member States make use of the following non-refugee related mobility schemes: facilitated family reunification;260 medical evacuation; ­students’ mobility, including providing scholarships to refugees; and labour mobility, including removing bureaucratic requirement that are difficult for refugees to fulfil.261 Such development would be in line with the objectives of ceas, as long as these channels remain complementary and integration-based criteria do not become a prerequisite for accessing protection. In addition, in order to be in line with Member States’ legal obligations, the use of legal migration channels should be without prejudice to the option to apply for asylum and the rights that these individuals enjoy on the basis of the prohibition of refoulement. 256 Guild, Costello, Garlick and Moreno-Lax, Enhancing the Common European Asylum System (n 176) 21; the authors note that this would have to be accompanied by the lifting of carrier sanctions on transport companies so that those in need of international protection who have not been able to acquire travel documents are also able to flee. 257 K. Long, ‘Rethinking “Durable” Solutions’ in E. Fiddian-Qasmiyeh, G. Loescher, K. Long and N. Sigona, The Oxford Handbook of Refugee and Forced Migration Studies (oup 2014) 476; see also T. Alexander Aleinikoff, ‘From Dependence to Self-Reliance: Changing the Paradigm on Protracted Refugee Situations’ (2015) Policy Brief, The Migration Policy Institute. 258 K. Long, ‘From Refugee To Migrant? Labor Mobility’s Protection Potential’ (2015) Report, The Migration Policy Institute 16–17. 259 Ibid 18–20. 260 See also Red Cross eu Office and ecre, Disrupted Flight: The Realities of Separated Refugee Families in the eu, 2014. 261 fra, Legal Entry Channels (n 85) 11–15.

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By Way of Conclusions

The present research aimed at showing that the Common European Asylum System, that is a notion often used but less often defined, is more than a harmonised legislative framework. The present collective volume where our colleagues from the Odysseus Academic Network have analysed the second generation of rules of the asylum acquis to evaluate not only their added value, but also to test the coherence of the new legislative framework, cannot finish without coming back to the central role of common rules. Contrary to the end of the legislative phase that has been announced in the field of asylum, if not the entire area of freedom, security and justice at the occasion of the guidelines adopted by the European Council of June 2014 that are almost forgotten,262 the need for more legislation is already back in the European agenda on migration that the Commission presented on 13 May 2015.263 It may also reappear in the future under the form of an asylum code, like the existing ones on borders and visas, when we will again search for coherence because the asylum acquis will have been amended in the course of the changing circumstances. The second pillar of the ceas appeared under the form of practical cooperation between Member States and has been institutionalised by the recent creation of the European Asylum Support Office that is nothing else than the emergence of an executive framework for the common asylum policy. Like it has been the case with Frontex, the mandate of easo will be reinforced as the pressure for better implementation of the asylum acquis at eu level will continue to grow, combined with a need for better monitoring the action of Member States that will oblige the legislator to conciliate this function with the status of an intergovernmental agency that will gain independence towards Member States. Solidarity appeared in broad daylight as the third pillar of the ceas when one more shipwreck provoked too many deaths in the Mediterranean on 18 April 2015. Until that day, Member States pretended to build a ceas mainly on the basis of the principle of responsibility with the Dublin mechanism as symbol. As it is one of the most politically sensitive issues for Member States, even the Commission pushed forward during years only the idea of a toolbox made of diverse instruments for solidarity supposed to favour its implementation. In fact they were actually used to hide the rejection of the principle of fair sharing of responsibility, despite its endorsement by the Treaty of Lisbon. Caught by time, the Commission finally made in 2015 a breakthrough proposal on relocation 262 See European Council Conclusions (n 157). 263 European Agenda on Migration (n 188).

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on the basis of a mandatory mechanism for Member States, built upon a distribution key that Member States rejected in a desperate attempt to preserve their sovereignty in a European asylum system that they refuse to render genuinely common. Member States’ choice to make relocation mandatory for asylum seekers brings the risk of generating very high costs, if not of a failure of the system, as is the case with Dublin. This is worrying, as it would fuel distrust among Member States, that is already high and will itself diminish the acceptance of solidarity, like in a vicious circle. Despite the quick progress of the political debate engaged by the Commission proposal, the lack of a sound plan based on data derived from objective criteria evaluating the asylum capacity of Member States in relative rather than absolute terms, may have the consequence that this debate will continue to reap pitiful results within the next years. The eu could therefore still be considered as manifestly breaching Article 80 tfeu.264 Contrary to the need for effective intra-eu solidarity that has been denied until recently, the necessity for the eu to collaborate with third countries of origin and transit was recognised ten years ago in the field of asylum as well as that of migration. It is now considered as the fourth pillar of the ceas. Despite the evolution of its discourse, the eu affirms like many States in the world, its readiness to protect refugees, but, in conformity with the ‘nimby syndrome’,265 as much as possible outside the eu, on the territory of other States. This appears clearly through its support for building capacity of protection in third countries by funding projects; the same goal seeps out of its new discourse linking asylum and development, as it has been the case for migration. The eu is beginning to conceptualise imaginatively other legal ways of entry to protection, while the resettlement policy already shows its limits. Although Member States managed to pledge to resettling 20.000 individuals without great controversy, the numerical target set is relatively insignificant, especially bearing in mind the level of forced displacement in the eu neighbourhood. Using diverse migration channels to welcome more refugees than those who already managed to access the European territory could undoubtedly, on the one hand, facilitate boosting the numbers of those who manage to enter the eu legally. On the other hand however, this could contribute to the transformation of the ‘duty to protect’, in a ‘favour to welcome’, as is the case with 264 We share this opinion expressed by our colleague F. Maiani on the basis of a remarkable analysis of Article 80 tfue during the seminar ‘The Meaning of Solidarity for Refugee Protection in the eu’ organised by Queen Mary Law School, with the support of the Refugee Law Initiative of the University of London, in London on the 27th April 2015. 265 Referring to the expression ‘not in my back yard’.

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certain types of humanitarian admission, despite their noble inspiration. Taking the risk to blur the lines between asylum with migration, whereas the eu has tried to build those policies separately, precisely in an effort to honour its legal obligations, conceals the willingness of the eu to ignore the paradox of building a common asylum system without foreseeing a road to allow asylum seekers to introduce their application in order to benefit from it. The eu will continue to ignore this issue, until one asylum seeker manages to elucidate from the European judge the answer to the question to which extent the right to asylum enshrined in Article 18 of the European Charter of Fundamental Rights, includes the right ‘to seek and to enjoy in other countries asylum from persecution’ recognised by Article 14 of the Universal Declaration of Human Rights, that becomes evermore the core of the debate.

Index Accelerated procedures 33, 291, 412–421, 428–436, 443–444, 452, 454 Actors of protection 32–33, 76, 208–210 Appeal 31, 126–131, 176, 230, 284, 298, 307–308, 314, 388, 400–401, 409–410, 426–428, 429–436, 444–445, 449, 453–454, 457–470 Asylum, right to seek 415, 448, 518 Asylum Procedures Directive 13–14, 28–34, 63, 67, 74–79, 93, 110, 116, 126, 132–133, 223, 237, 284–289, 305, 354, 359–371, 377–445, 446–470 Asylum-seekers humanitarian admission 90, 278–279, 486, 513–517 treatment of 75, 83, 271–316, 340–344, 458, 467–469, 507 vulnerable persons 25, 30–32, 63–64, 80, 158, 172, 184, 272–274, 300–302, 307, 327, 332–337, 351–353, 353–373 Asylum shopping 104 Border controls 4–6, 39–54, 88–89, 499, 502 Burden sharing 10, 165, 480, 502–508 Charter of Fundamental Rights of the European Union 81, 117, 199, 342, 348, 448 Children, see also minors 118–129, 149–157, 183, 206–208, 313, 350–351, 358, 364, 437–439 Council of Europe 299, 329, 420, 453–454 Court of Justice of the European Union (cjeu) Abdida 230–232, 313–315 Abdullahi v Bundesasylamt 109, 127–128, 137, 174 Cimade and Gisti 156, 282, 300–301, 309 El Kott and others 226–228 Elgafaji 233–234, 262 European Parliament v Council of the European Union 200–201 K v Bundesasylamt 149, 153, 182 ns and me 77, 184, 330, 333, 339, 342–344, 347–348, 362 Saciri 156, 199–200, 300–301, 308–309 Crimes 36, 224–225, 416

Detention 25, 31, 63, 78–82, 129–130, 172, 177–179, 273–280, 285–296, 310–311, 325–326, 329, 338, 366, 389, 392–393, 436, 444, 446–471 Directive on Temporary Protection 13, 282, 476, 479, 501, 533–534 Dublin ii Regulation 101–142, 144–150, 159–195 Dublin iii Regulation 101–142, 150–158, 159–195 Dublin Convention 6–8, 13, 101–112, 143–145, 320–321 Early warning 62–63, 115, 138–141, 186–188, 494–495, 510, 512 Economic, Social and Cultural Rights 76, 312, 502 Eurodac Regulation 13, 23, 26, 56, 63–68, 74–76, 111, 164, 167, 175–181, 347, 413–416, 464 European Asylum Support Office (easo) 107, 139, 166, 169, 172, 186–191,   203, 394, 403, 420 European Border Guard 502–504 European Convention on Human Rights and Fundamental Freedoms (echr) 91, 117,  133, 137, 144, 147, 163, 199, 211, 233, 240,   261, 289, 292, 317, 320, 356, 399, 401, 420,   431, 450–451, 455–456 European council on Refugees and Exiles (ecre) 18, 76, 103–104, 176, 387, 395, 400,   420–421 European Court of Human Rights (ECtHR) Budina v Russia 312, 327, 356 Hirsi Jamaa v Italy 91, 452 im v France 415, 453 mss v Belgium and Greece 34, 61, 113, 136, 167–169, 173, 184, 272, 312, 319, 324–352, 356, 408, 442, 452 Saadi v uk 288–289 Samsam Mohammed Hussein 334–335 Sufi and Elmi 232, 262 Tarakhel 313, 37, 346–352 European Court of Justice (ecj) 61, 104, 109, 115, 148, 199, 209–210, 216, 221, 234–235

540 Expulsion 22, 86, 137, 229–232, 317, 324, 348, 434, 448, 455 Extradition 87, 229, 317, 400–401, 455 Fair procedure 21, 91, 198, 229, 331, 377, 381, 384 Family life, right to 117, 122, 124, 144, 148, 150, 158, 163, 207, 287, 434, 451 Family reunification 81, 90, 123, 142, 143–158, 200–201, 207–208, 246, 486, 535–536 Frontex 41, 43, 46–47, 51–52, 88, 487, 491, 501, 504–505, 510, 522 Geneva Convention relating to the Status of Refugees (Refugee Convention) 4, 11,   14, 21, 30, 86, 91, 137, 198–199, 204,   209–239, 240–242, 246, 260, 264, 267,   271, 278, 281, 286, 317, 327, 340, 352,   379, 398–399, 414–415, 448–449, 455,   473, 499, 533 Hague Programme 17–18, 56, 187, 477–481 Homosexuality 44, 236, 404 Human Rights Committee 450 Humanitarian visa/admission 37, 90–91, 278–279, 390, 486, 513–518, 533–534 Integration 104–105, 191, 232, 244, 250–251, 264–267, 278, 280, 311, 484, 515–516, 527, 535 Interception 32, 112 Internal Protection Alternative 32, 76, 210, 212 International Covenant on Civil and Political Rights (iccpr) 420, 450 Irregular migration/entry 36, 88, 111–112, 128, 180, 184, 191 Liberty and security, right to 272, 288, 291, 296, 437, 448 Long-term Residents Directive 266 (n 91), 267 (n 93), 381 (n 16) National security 245, 247, 290–291, 394, 413, 416, 418, 424, 429, 464, 466 Non-refoulement, principle of 22, 30, 34, 36, 40, 81, 87, 91, 137, 170, 240, 268, 318, 344, 397, 420, 449, 518

Index Passports/passport control 5, 52, 247 Persecution 30, 33, 39, 203, 208–236, 260, 263, 367–368, 380, 404, 407, 419–420, 423, 437, 441, 447, 467, 538 Protected Entry Procedure 37, 90, 278, 390, 477, 513–514, 517 Public security 413, 416, 418, 424 Qualification Directive 13–14, 18, 22, 33, 58–59, 62, 71, 75–76, 86–87, 93, 132, 157, 167, 197–268, 281, 331, 354, 357, 367, 373, 380, 391, 398, 412–413, 419, 430–431, 436–437, 457, 476, 498, 501 Readmission 452 Reception Conditions Directive 13, 22, 29–32, 56, 63, 64, 68, 74, 78–79, 93, 130, 144, 155–156, 172, 179, 202, 271–316, 317–352, 353–373, 392, 412, 441, 457, 460, 468, 502, 511 Refugee Convention, see Geneva Convention relating to the Status of Refugees Refugee Definition 4, 7, 32, 204, 213–214, 226, 228, 235–236, 271 Refugee status Cessation and exclusion 14, 36, 55, 205, 219–220, 222–228, 429, 436–437, 457 Recognition of 7, 11, 13, 14, 16, 55, 75, 93, 115, 120, 167, 192, 205–206, 213–214, 226–228, 273, 357, 398, 404, 412, 449 Refugee Status Determination (rsd) 379, 381, 404, 430, 440–441,  449, 489 Refugee Status and Subsidiary Protection 240–268, 391, 521, 533 Relocation 96, 187, 192–193, 352, 476, 479–480, 488–491, 500–501, 506–509, 519, 521, 524–537 Residence permit 52, 144, 192, 201, 206–207, 231–232, 251–267, 271, 331–332, 336–337 Resettlement 37, 48, 63–71, 89–92, 278–279, 477–491, 514, 516–517, 522, 524, 530–537 Return Directive 86, 130, 290, 293, 314–315 Safe country of origin 14, 33–34, 37, 378, 412–413, 418–424, 431, 435 Safe third country 14, 132, 223, 378, 395–400, 417, 420, 422, 424, 432

Index Schengen Agreement 5–6, 101 Schengen Borders Code 37, 90, 391, 415 Schengen visa 52, 513 Sexual orientation 238, 366, 388, 404–405, 423, 440 Solidarity 26, 37, 61, 66, 75, 80, 88, 94–97, 103, 111–116, 139–140, 159–194, 319, 473–538 Stockholm Programme 19, 75, 79, 106, 108, 163, 243, 317–319, 353, 382–383, 481–484 Subsidiary protection 4, 12–13, 17, 20, 36, 55, 71, 75, 93, 102, 115, 120, 152, 157–158, 167, 192, 197–200, 203–211, 216–217, 223–224, 228–239, 240–268, 276, 281, 311, 317, 331, 336, 391, 430, 436, 498, 521–522, 533 Tampere conclusions 11–12, 17, 318, 457, 475–476 Torture, inhuman or degrading ­treatment 39, 283, 287, 301, 311 Trafficking 358, 368, 441 Travel document 52, 244, 246–247, 331, 412, 414, 424, 535 Treaty of Amsterdam 9–11, 21, 55, 457

541 Treaty of Lisbon, see Treaty on the Functioning of the European Union Treaty of Maastricht, see Treaty on European Union Treaty on European Union (teu) 4–9, 21, 300, 317, 339, 456 Treaty on the Functioning of the European Union (tfeu) 19–20, 57, 66, 75, 102,   197–198, 275–276, 317, 430, 456, 463, 470,   482, 499–500, 508–512, 527, 536–537 Unaccompanied minors/children 25, 79–80, 126, 145, 148–158, 180, 182, 189, 309, 358, 361, 388, 396, 409, 412, 418, 423–424, 438, 441, 445, 447, 462 unhcr 3, 14–18, 23–27, 31, 40, 45, 48–50, 53, 65, 78–79, 92, 96, 103–104, 108–109, 169, 171–173, 175, 177, 181–182, 188, 190–191, 199, 202–203, 205, 215–219, 221, 225–228, 237–239, 242, 247, 288, 290–293, 321, 327, 329, 332, 343, 360, 363, 368, 379, 384–386, 398–399, 402, 408, 420, 428, 448, 460, 468, 477, 484–486, 491, 512–517, 522, 534 Well-founded fear 33, 211–213, 217–220, 222, 225, 228, 235–236