The ins and outs of the European Common asylum system

The Dublin Regulation, which came into force in 2003, provides the criteria to establish which Member State is responsible for examining an asylum claim. The main principle is that the Member States which allows an asylum seeker to enter the EU (whether legally or illegally) is responsible for deciding his claim. The European Court of Human Rights has recently ruled that Belgium should not have expelled an asylum seeker to Greece under the so-called Dublin Regulation. The asylum seeker had entered the EU from Greece. In accordance with the EU's 'Dublin II' Regulation, the Belgian authorities submitted a request for the Greek authorities to deal with the asylum claim.

However, the European Court of Human Rights held both Greece and Belgium violated articles 3 and 13 of the European Convention of Human Rights. Greece violated Article 3 (prohibition of inhuman or degrading treatment or punishment) because of detention conditions and for not complying with minimum standards on the treatment of asylum seekers. In the other hand, Belgium violated Article 3 by having exposed the asylum seeker to the Greek deficient asylum procedure as well as to the Greek living conditions in breach or Article 3. Moreover, the Court also held that Belgium violated Article 13 for not having provided an effective remedy against the asylum seeker’s expulsion order.

This ruling would have serious impact on the UK and other Member States, as Greece is one of main points of entrance of asylum seekers and illegal immigrants. In fact, anticipating such ruling, several Member States, including the UK, have already stopped sending asylum seekers back to Greece under the Dublin II mechanism.

Unsurprisingly, the European Commissioner for Home Affairs, Cecilia Malmström reacted to the ruling saying that the EU urgently needs to put in place a Common European Asylum System. It is important to recall that in December 2008, the European Commission put forward the first proposals of the second phase of the asylum legislation, which represent a legislative step towards the single asylum system. The Commission presented proposals to amend the Directive on reception conditions for asylum-seekers, the Dublin Regulation and the Eurodac Regulation. In 2009, the Commission adopted proposals to amend the Qualification Directive and the Asylum Procedures Directive and proposed the establishment of a European Asylum Support Office (expected to be fully operational by June 2011.)

In May 2009, the European Parliament, adopted with amendments, aimed at strengthening solidarity between Member States, the first three proposals. The Council has not adopted yet a common position on the different proposals. In fact, there is an impasse at the Council, which shows member states reluctance for a common asylum system. The Commission is looking for the quick adoption of the six legislative proposals of the second phase of harmonisation so that a single asylum procedure and a uniform international protection status can be established by 2012. After the ECHR ruling, Cecilia Malmström has called on member states and European Parliament to reach a compromise as soon as possible.

Although the UK has an opt out, the Labour Government has opted into to all proposals concerning asylum, which has further weakened the UK’s border controls. The UK is, therefore, obliged to ensure that its policy and practice does not conflict with the EU asylum legislation. Moreover, the UK is subject to the European Commission enforcement powers and to the ECJ jurisdiction if it has opted into such legislation.

The UK has decided not to opt into the revision of the EU Directive on Reception Conditions for Asylum Seekers. This was the first time that the Labour Government has decided to opt out from an asylum measure. The 2005 Procedures Directive and the 2004 Qualification Directive apply to the UK, but the former Government has decided not to opt into the recast proposals of these directives. Under the Protocol on the Position of the UK in respect of the Area of Freedom, Security and Justice, as amended by the Lisbon Treaty, the UK can opt out of amendments to legislation from which it has already opted in. However, if the Council decides that the non-participation of the UK in the amending version of an existing measure makes the application of that measure inoperable for other Member States or the Union, it may urge the UK to take part in the adoption and application of the proposal. If the UK decides not to participate in the amendment, the Council acting by QMV may determine that the UK shall bear the direct financial consequences incurred as a result of the cessation of its participation in the existing measure. Nevertheless, it seems, if the UK decides not to op into a proposed amending measure in the area of JHA, the existing measure would no longer apply to the UK. Particularly, if the old measure is repealed it ceases to exist therefore by deciding opting-out to the new proposal the UK would no longer be bound by the original directives.

However, the former Government has decided to opt into the recast proposal of the Dublin II regulation. The proposal lays down deadlines to make the procedure for determining responsibility more “efficient” and “quicker.

Whereas presently the Dublin Regulation contains no provision on the detention of applicants the Commission draft proposal would prohibit Member States for keeping in detention a person who is the subject of a transfer decision to the responsible Member State unless there is a significant risk of the applicant escaping. Under the proposal such detention must be ordered by judicial authorities or by administrative authorities but subsequently confirmed by judicial authorities within 72 hours. If these provisions are not amended the UK will have to submit these detention orders to judicial approval.

Aiming at achieving a “higher degree of solidarity”, the Commission’s proposal would introduce a new procedure allowing for the temporary suspension of Dublin transfers. Under the draft proposal, Member States may request, to the Commission, that the transfer of applicants for international protection to be suspended if they are facing a particularly urgent situation which places an exceptionally heavy pressure on their reception capacities, asylum system or infrastructure and the Dublin transfer would make the situation worse. This procedure of suspension of transfers may also be used in cases where the Commission considers that Dublin transfers could result in applicants for international protection not benefiting from adequate standards of protection in the responsible Member State. Hence, if the Commission considers that a Member State level of protection for applicants for international protection is not in conformity with Community legislation it may decide to suspend all transfers of applicants to that Member State. A Member State may also request the Commission to suspend all transfers of applicants to a Member State if that country level of protection for applicants for international protection is not in conformity with Community legislation. The draft proposal would entail, therefore, an EU-wide suspension of Dublin transfers.

The Commission is required to notify the Council of such decision. However, the Council would have just one month, acting by qualified majority, to take a different decision. The proposal provides that transfers may not be suspended for a period exceeding six months. However, if the conditions persist the Commission may decide to extend their application for a further six months period.

Moreover, according to the Commission proposal “ (…) the other Member States in which the applicants whose transfers have been suspended are present, shall be responsible for examining the applications for international protection of those persons.

The temporary suspension of the Dublin system has been the most controversial issue during the negotiations. The UK, as well as other member states, is concerned that such mechanism, if adopted, would reduce member states incentive to provide adequate reception conditions for asylum seekers. Moreover, it would allow ‘asylum shopping.” In the other hand, member states, including Malta, Italy and Greece favour the proposal.

However, the European Court of Human Rights ruling will change the dynamic of the negotiations. For the Commission satisfaction, more member states are now willing to accept its proposal for EU-wide suspension mechanism.

Under the ECHR ruling, the UK cannot deport asylum seekers to Greece. In fact, as Sir Andrew Green noted ‘This opens a gateway into Europe and Britain for asylum seekers. Future asylum seekers will enter the EU through Greece safe in the knowledge we cannot send them back.” Obviously, if the Commission’s proposal is adopted it would have a wider impact as it would cover cases where a Member State is facing “heavy pressure” on its reception capacities as well as cases where the Commission considers that Dublin transfers could result in asylum seekers not benefiting from adequate standards of protection in the responsible Member State.

The European Parliament not only endorsed the temporary suspension of Dublin transfers, but it has also proposed legally binding instruments, to be set up before 2012, to ensure greater solidarity between Member States when managing asylum applications, such as setting up teams of national experts, under the aegis of the European Asylum Office, to assist Member States confronted with a large number of asylum applications, where applicants cannot benefit from adequate standards of protection and, where the reception capacities of one Member State are insufficient. Such legally biding instruments to enhance burden sharing between Member States go much further than the Commission proposal for the temporary suspension of the Dublin system.

Although the Commission has not accepted such measures, in its Action Plan on the Stockholm Programme, the Commission stated that the EU should “provide for a true sharing of the responsibility for hosting and integrating refugees, including the setting-up of a voluntary mechanism for redistribution between Member States and common processing of asylum applications.” The Commission has called, therefore, for “a more permanent solidarity system” from 2013, which would be coordinated by the Asylum Support Office.

It remains to be seen what will come out from the negotiations. It is important to mention that the UK negotiating position is particularly difficult as there are several cross-references in the Commission’s proposal amending the Dublin Regulation to provisions on the proposal amending the Reception Conditions Directive. The UK would have to convince the majority of the Member States to amend or delete such cross-references and to clarify that the UK participation in the new Dublin Regulation does not entail the observance of the requirements contained on the draft directive on reception conditions.

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