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2.6.2015 | Von:
Jan Schneider
Marcus Engler

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

Since the mid-1990s German asylum law has become increasingly framed by common European regulations on refugee protection. It is subject to jurisdiction of the European Court of Justice and the European Court of Human Rights. Germany, however, successfully managed to introduce some restrictive elements of its national asylum policies also on the European level.
Eine Aufnahme vom 30.08.2014 zeigt Mitarbeiter der Flüchtlings-Rettungsstation auf See, die von einem Beiboot der «Phoenix» aus Flüchtlingen in einem Schlauchboot Wasserflaschen zuwerfen. Die Migrant Offshore Aid Station (MOAS) ist von der Italienerin Regina Catrambone und ihrem amerikanischen Ehemann Christopher als nach eigenen Angaben Europas erste privat finanzierte Flüchtlingshilfe zur See gegründet worden. Das seit mehreren Jahren auf Malta lebende Unternehmerpaar hat im vergangenen Jahr etwa 3000 Flüchtlinge vor dem Ertrinken im Mittelmeer gerettet.August 2014: Staff of the Migrant Offshore Aid Station throw bottles of water to refugees on a rubber boat off the coast of Malta. (© MOAS.EU/dpa)

Within the European Union, it was only at a comparatively late stage that refugee policy issues became subject to integration efforts. The need for common European regulations only became obvious after Germany, France and the Benelux countries had signed the "Schengen Agreement" of 1985, to gradually abolish border controls on the movement of persons, and after the Heads of State and Government of the then twelve EC Member States had signed the Single European Act one year later, agreeing to the completion of a single European market. Henceforth, the abolition of border checks would allow asylum seekers to travel unobstructed from one Member State to another in order to claim asylum there.

Development of the Legal Framework

The Schengen Agreement, which was later integrated into the Community acquis, provided not only for the removal of internal border controls, but also for a harmonization of the regulations for granting visas. To minimize the potential security risks arising from the removal of internal border controls, the "Schengen States" agreed on better control of the external borders of the Community. The 1990 Convention Implementing the Schengen Agreement (CISA or "Schengen II") marked the starting point for a joint policy of immigration control[1], which included among its key components regulations for dealing with refugees and asylum seekers. The "Dublin Convention" of 1990 provided the foundation for this, establishing regulations to determine which Member State would be responsible for processing an asylum application[2]. These stipulated that the responsibility for examining an application for protection, and for providing accommodation, lay with the Member State that had played the most important role in the asylum seeker’s entry into Europe – for example if the applicant had travelled to close relatives already living in the country, or if he had been issued a visa or residence permit by this state. On the one hand, this was meant to ensure that only one state was responsible for any given asylum seeker, and to avoid the phenomenon of "refugees in orbit" – people living in the European Community with no official status, and with no state taking responsibility for looking after them and processing their applications for asylum. On the other hand, the aim was to make sure that each application for protection would receive only one substantive examination, so as to discourage "asylum shopping" – the submission of repeated or simultaneous applications in different Member States.

It was particularly states such as Germany and France which, in the 1990s, insisted on the defining of responsibilities in accordance with the Dublin Convention, since they feared that their high standards of protection and accommodation would make them a "reserve country of asylum" (Reserveasylland) within the Community, in which the majority of asylum seekers would apply for asylum, or in which economically motivated migrants with no history of acute persecution would also try their luck.[3] In addition to this, Germany successfully campaigned on a European level for restrictive instruments such as the specification of "safe countries of origin" or "safe third countries", or accelerated procedures in the case of "manifestly unfounded asylum applications".[4] The Dublin Convention came into force on 1 September 1997, and has applied to all EU Member States since 1 January 1998. Since then, the state responsible for the asylum process is, in most cases, the state which an asylum seeker first entered, or where he or she can be proven to have first stayed.

With the Treaty of Amsterdam, also signed in 1997, the Member States formally agreed on the development of a common asylum and migration policy, as a step towards creating an area of freedom, security and justice. Since the Treaty came into force on 1 May 1999, the regulation of asylum and refugee policy issues has been one of the "communitized" areas of policy. The EC treaty included the obligation to comply with important international agreements, including the Geneva Refugee Convention and the European Convention on the Protection of Human Rights and Fundamental Freedoms. The aim was to create, within five years, minimum standards in EU refugee policy, both for the reception of asylum seekers and for legal recognition and the implementation of asylum procedures; the treaty also provided for the further development of the Dublin Convention and the creation of a legal basis for the reception of displaced persons or other groups of people in need of protection.

At a special meeting of the European Council in Tampere in October 1999, the first concrete steps were taken towards the goal of creating a Common European Asylum System (CEAS), based on the "full and inclusive application of the Geneva Convention". The Commission was charged with drafting relevant directives. At the same time, the decisions of the European Council envisaged, in the longer term, the creation of common asylum procedures and a uniform status, valid throughout the Union, for those granted asylum.[5] In terms of European integration, the decisions made sense in several respects. On the one hand, they conformed to the logic of seeing the united Europe as one domestic area with as much opportunity as possible for the free movement of persons. On the other hand, the planned minimum standards offered the prospect of a tangible improvement in the legal situation of asylum seekers in many EU States.

Another important step for European asylum law was the work of the Convention on Fundamental Rights, which explicitly incorporated the right to asylum in accordance with the Geneva Convention of 1951 and the Protocol of 1967 into the EU Charter of Fundamental Rights (Art. 18). This was proclaimed at the Nice Intergovernmental Conference in December 2000, and came into force with the Treaty of Lisbon in December 2009 – which gave it a kind of constitutional status.

Despite the fact that the Tampere agreements proved to be too ambitious, and there were delays in their implementation (not least due to the terrorist attacks of 11 September 2001 and the ensuing discourse on security), four key legal instruments of the CEAS had been decided on by 2005. These still constitute the axes of the common asylum policy (see Table 1). They are:

1) the "Qualification Directive", which sets minimum standards for the recognition of asylum seekers and for the rights of recognized refugees and persons with subsidiary protection status;

2) the "Reception Conditions Directive", which defines standards for social conditions of reception, accommodation and care;

3) the "Asylum Procedures Directive", which aims at standardizing the implementation of asylum procedures, and

4) the Dublin II Regulation, which superseded the Dublin Convention.

In addition to this, the so-called Eurodac Regulation stipulated that the fingerprints of all asylum seekers would be recorded when they made their application, and would then be available to the asylum authorities of the Member States, together with other data, in an EU-wide database. The Eurodac system is meant to facilitate to determine which state is responsible for the asylum procedure. On 8 August 2001, an additional directive on temporary protection (also known as the Mass Influx Directive) came into force. After the refugee crises caused by the civil wars in the former Yugoslavia, the EU wanted to establish a joint mechanism for the prompt admission of civil war refugees and displaced persons in similar crises. The aim was to fix a specific admission quota for each Member State. The directive, however, contained only an agreement on minimum standards for temporary admission. In other respects the principle of voluntary action remained intact, and Member States are still free to determine their own capacity to receive refugees.[6]

Table 1: Central legal acts of the Common European Asylum System (CEAS)Table 1: Central legal acts of the Common European Asylum System (CEAS) (© bpb)
In the EU’s five-year home affairs program for the years 2005 to 2010 (the Hague Program), the main policies agreed on (besides the CEAS) were measures related to security and defense, such as more intensive efforts to combat irregular migration. Since 2008 the EU has agreed on a common policy on deportation and for the use of coercive measures and (re-)entry bans, as set out in the "Return Directive".[7] These policies aimed in part at rejected asylum seekers who have remained in the EU illegally. In October 2004 the European border protection agency Frontex was established by order of the Council; since then it has centrally coordinated the surveillance of the EU’s external borders from its headquarters in Warsaw.[8]

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)
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Baumann (2014), p. 5.
Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities (15 June 1990).
Lavenex (2001); Niemann/Lauter (2011), pp. 146f.
Schwarze (2001), pp. 162ff.; Niemann/Lauter (2011). The transfer of these restrictive policies from the fierce asylum debate at the national level to the intergovernmental arena of policy making at the European level has been viewed as proof of the venue-shopping hypothesis (Guiraudon 2000, p. 262; Bulmer 2011). According to this theory, the home-affairs dominated ministerial bureaucracies of the Member States, aiming at restriction and migration control, tend to implement their policy goals at the supranational level, because there they can act beyond parliamentary control or political opposition and are not bound to restrictive judicial interference. Acting at the European level helps to make allies (interior ministers of other states), and eventually allows governments to implement their political aspirations at the national level as well, legitimizing the implementation by referring to multilateral agreements of European institutions.
Presidency Conclusions, Tampere European Council, 15 and 16 October 1999.
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. In addition, a decision of the Council on the existence of a "mass influx", adopted by a qualified majority, is needed in order to activate the directive. This, however, has never been the case since the directive entered into force in August 2001 (not even during the massive influx of Syrian war refugees from 2011 to 2014).
Directive 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.
Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union. For further information see Baumann (2014).
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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