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2.6.2015 | Von:
Jan Schneider
Marcus Engler

Flight and Asylum as a Europeanized Policy Area: Achievements and Harmonization Goals

The Long Road to a Common European Asylum System

The first harmonization phase of the common asylum law (CEAS I) between 2000 and 2007 laid important foundations, but was unable to resolve central challenges. Many of the requirements and minimum standards were too vague, and in some cases the Member States deliberately failed to meet them. The main problems continued to be the substantial differences between the national recognition rates, and the inadequate accommodation and procedural standards in some EU Member States, such as Greece, Italy or Cyprus. Against this background, the European Commission issued a Green Paper in 2007, with concrete proposals for the further development of the European asylum system.[9] The core objectives were further harmonization and improvement of protection standards, the creation of a support office for asylum issues (see info box), and greater solidarity between EU States and towards third countries when it came to admitting refugees. In 2009 these priorities were adopted by the European Council in the "European Pact on Immigration and Asylum", and in the five-year justice and home affairs program for the years 2010 to 2014 (Stockholm Program).

The negotiations over the reform package were lengthy, but eventually led to the amendment of the relevant legal foundations between 2011 and 2013 (CEAS II). These must be transposed into national law by the middle of 2015. In particular, the revision of the Qualification Directive led to an improvement in the material protection of refugees. Moreover, the conditions are now in place for more uniform standards of accommodation and asylum procedures (see Table 1).


Info Box

The European Asylum Support Office (EASO)

The European Asylum Support Office (EASO), based in Valetta (Malta), is intended to contribute to better implementation of the CEAS – mainly by promoting the exchange of information and practical collaboration on asylum issues within the EU, and by providing organizational support for those Member States whose asylum system is overburdened. In concrete terms, the office systematically gathers information about the situation in the countries of origin of asylum seekers, promotes relocation measures (i.e. the relocation of recognized refugees from overburdened EU States to other Member States), and organizes asylum-related training for the staff of government agencies. It also dispatches asylum support teams to states whose asylum systems are overburdened, and plans their work. EASO collaborates closely with the asylum authorities in the Member States and with the Commission, but is independent. The annual budget has risen from less than five million euros (up to and including 2012) to around 15 million euros (for 2015). EASO has around 80 staff, and is headed by an executive director. Every year, the office produces a report on the asylum situation in the Union.* As a relatively young institution, EASO is still in the consolidation phase, and needs to be gradually strengthened - both ideally as well as in terms of staff - in order to effectively fulfill its mandate.

* EASO (2014).
In the process of harmonization, it is not only the Member States who have obligations to fulfill. If there is actually to be a unitary asylum standard in the EU, vital coordinating work needs to be done, especially by the Commission and the European Asylum Support Office (EASO). At present, there is still a huge gap between the aspiration to a common asylum system and the reality, with individual Member States repeatedly violating the principle of non-refoulement and other provisions of international humanitarian law.[10] Seminal court rulings in the last few years have helped to frame the sometimes vague political guidelines in more precise terms, and have shown that there is as yet no coherent application of the CEAS standards. Both the European Court of Human Rights (ECHR) and the European Court of Justice (ECJ) have made decisions that are of central importance for the EU as a common asylum area, and especially for the Dublin system.[11] These judgments have strengthened the rights of refugees, especially with regard to their accommodation and the quality of asylum procedures.

In January 2011, in the case of an Afghan citizen (M.S.S. against Belgium and Greece), the ECHR ruled that asylum seekers may not be returned to countries – even within the EU – in which they face the threat of inhumane or degrading treatment (Art. 3 European Convention on Human Rights/ECHR). The applicant had been transferred from Belgium to Greece, in accordance with the Dublin Regulation, because that was where his fingerprints had first been recorded. His accommodation proved to be inhumane in terms of Art. 3 of the ECHR, and in breach of the provisions of the EU Reception Conditions Directive.[12] This was followed in December 2011 by a landmark decision by the ECJ, which determined that an asylum seeker may not be transferred to a Member State if the respective asylum system displays "systemic deficiencies".[13] Since the judgment of January 2011, asylum seekers are no longer transferred from Germany to Greece.

With regard to the Italian asylum system, there is evidence that it fails to guarantee conditions of reception that are compliant with Community directives, and there is still disagreement over whether this system also has "systemic deficiencies". Despite numerous temporary injunctions against transfers to Italy, this question has so far been negated by the courts. In a judgment from November 2014 (Tarakhel vs. Switzerland), however, the ECHR decided that families may only be transferred to Italy if the Member State returning them receives assurances for every individual case that adequate accommodation will be provided in accordance with the Reception Conditions Directive.[14]

Another important decision strengthening the rights of refugees in the EU was a judgment of the ECHR in February 2012 (Hirsi Jamaa et al. vs. Italy). This extended the scope of the European Convention on Human Rights to the high seas, and thus obliged EU States to allow asylum applications from people picked up in international waters by ships bearing the flag of an EU State.

The revision of the common asylum regulations in the second CEAS phase, and the different precedent-setting decisions of the highest European courts, have laid the foundations for a European system of protection. However, this system still has numerous gaps, shortcomings and dysfunctionalities – not least because the directives have not yet been implemented in all the Member States, and no answers have yet been found for central questions (see "Current and Future Challenges"). Further efforts at harmonization are needed in order to find joint EU solutions to the challenges associated with rising refugee numbers. These challenges are particularly obvious in Germany.

This text is part of the policy brief German Asylum Policy and EU Refugee Protection: The Prospects of the Common European Asylum System (CEAS)


COM (2007) 301 final of June 2007; see also Angenendt/Parkes (2007).
Mink (2012).
For detailed information see SVR (2014), pp. 81-83.
Moreno-Lax (2012a), pp. 20ff.
Pelzer (2012).
Thym (2013); ECHR, Grand Chamber, Case of Tarakhel v. Switzerland, Application no. 29217/12.



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