European Asylum Law

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The Common European Asylum System (CEAS)

Introduction to the CEAS

The European Union (EU) has one of the most developed systems for regional cooperation on asylum and migration issues in the world. Since the 1980s, European countries have adopted a range of measures to establish common rules regarding visas, refugee status determination, and security procedures at the EU’s external borders. 

In 1999, EU Member States started working towards the creation of a Common European Asylum System (CEAS), with the intention of creating a harmonised EU-wide approach to asylum seekers and refugees. The aim of the CEAS is to ensure that asylum procedures are as fair, consistent and effective as possible throughout the EU, and that asylum seekers receive equal treatment no matter the country in which they apply for asylum. It is based on the ‘full and inclusive’ application of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.

In the first phase of the CEAS (1999 – 2005), a series of legislative measures were adopted to establish common minimum standards for protection and asylum procedures in Europe. Following a period of extensive public consultation and reflection on this first phase, the CEAS entered its second phase (2008 – 2013), informed by a Policy Plan on Asylum that had been prepared and presented by the European Commission in June 2008. 

During the second phase of the CEAS, new EU-wide rules and common standards were agreed and set out in five key pieces of legislation: 

  • the revised Dublin Regulation, which establishes the ‘Dublin system’, a hierarchy of criteria for identifying which EU Member State is responsible for examining an asylum seeker’s claim for protection in Europe. Responsibility is generally allocated on the basis of an asylum seeker’s family ties to people in Europe, or to the State in which the asylum seeker first entered Europe. The aim of the Regulation is to ensure that only one EU Member State is responsible for the examination of an asylum application (to deter multiple asylum claims), and to allow that State to be identified as quickly as possible. The recast Dublin Regulation entered into force in July 2013 and applies to applications for international protection lodged since 1 January 2014;
  • the revised Asylum Procedures Directive, which establishes common standards for safeguards and guarantees relating to asylum seekers’ access to fair and efficient asylum procedures. It aims to ensure fairer, quicker and better quality asylum decisions, and that asylum seekers with special needs (such as unaccompanied minors) receive the necessary support to make their claims. The revised Directive superseded a previous one in July 2015;
  • the revised Reception Conditions Directive, which sets out common minimum standards for humane reception conditions for asylum seekers across the EU. It sets out rules relating to housing, food, health care and employment, and detailed common rules governing the limited circumstances in which asylum seekers can be detained. The revised Directive superseded a previous one in July 2015;
  • the revised Qualification Directive, which establishes common standards for who qualifies as a beneficiary of international protection, and the content of that protection. It aims to harmonise eligibility criteria for protection across the EU, and foresees a series of rights for its beneficiaries (including protection against refoulement, residence permits, travel documents, access to employment, access to education, social welfare, healthcare, access to accommodation, access to integration facilities, as well as specific provisions for children and vulnerable persons). The revised Directive superseded a previous one in 2012; and
  • the revised EURODAC Regulation, which establishes an EU-wide fingerprint database of asylum seekers, and allows law enforcement to access the database under strictly limited circumstances in order to prevent, detect or investigate serious crimes. The revised Regulation superseded a previous one in July 2015.

According to European law, these laws are legally binding on each State, and stand above their domestic laws (meaning that domestic law must be consistent with and implement the provisions of these instruments).

Recent proposals for reform of the CEAS

On 6 April 2016, the European Commission launched a process for further reform of the CEAS. Such reform was deemed necessary because:

  • the volume and concentration of asylum seeker arrivals had exposed the weaknesses of the Dublin system as a way to establish which EU Member State was responsible for examining an asylum application; and
  • the differing treatment of asylum seekers across EU Member States had exacerbated the problem of so-called ‘asylum shopping’, whereby people were engaging in irregular secondary movements within the EU to reach Member States that were perceived to offer superior asylum and reception conditions.

The European Commission tabled seven legislative proposals for the reform of the CEAS, in two packages published on 4 May and 13 July 2016. If adopted, these proposals would: 

  1. reform the Dublin system to make it more transparent and enhance its effectiveness, while providing a mechanism to deal with situations of disproportionate pressure on EU Member States’ asylum systems;
  2. replace the Asylum Procedures Directive with a Regulation establishing a fully harmonised common EU procedure for international protection, to reduce differences in recognition rates between Member States, discourage secondary movements and ensure common effective procedural guarantees for asylum seekers;
  3. reform the Reception Conditions Directive to ensure that asylum seekers can benefit from harmonised and dignified reception standards throughout the EU;
  4. replace the existing Qualification Directive with a new Regulation to ensure greater convergence of recognition rates and forms of protection in EU Member States, introduce firmer rules sanctioning secondary movements between Member States, ensure protection is granted only for as long as it is needed (with a compulsory status review to take into account changes in countries of origin which could impact the need for protection) and strengthen integration incentives; 
  5. extend the scope of the Eurodac Regulation to include the possibility for Member States to store and search data belonging to third-country nationals or stateless persons who are not applicants for international protection and found irregularly staying in the EU, so that they can be identified for return and readmission purposes;
  6. transform the existing European Asylum Support Office (EASO) into a fully-fledged European Union Agency for Asylum with an enhanced mandate and considerably expanded tasks to address any structural weaknesses that arise in the application of the EU's asylum system; and
  7. introduce an EU Resettlement Framework to establish a common European policy on resettlement and ensure orderly and safe pathways to Europe for persons in need of international protection.

As at December 2016, these proposals were yet to be voted on or adopted by the European Parliament or the Council of the European Union. Further information on how EU law is made is available here.

The European Court of Justice

The Court of Justice, one of two major courts comprising the Court of Justice of the European Union (CJEU), is the highest court in the EU with jurisdiction to deal with requests for preliminary rulings from national courts, appeals and other matters. Together with the General Court, the Court of Justice is tasked with examining the legality of EU measures, interpreting EU law, and ensuring its uniform application across the 28 EU Member States. This Court is not to be confused with the European Court of Human Rights (see below).

Since the advent of the CEAS, the Court of Justice has played an important role in overseeing the common application of its Regulations and Directives, in particular by delivering a significant number of preliminary rulings on the interpretation of CEAS legal provisions when requested to do so by a court or tribunal of an EU Member State. 

For a comprehensive record of the case law of the Court of Justice as it relates to refugees, asylum seekers and stateless people, see The Case Law of the European Regional Courts: the Court of Justice of the European Union and the European Court of Human Rights by the UN High Commissioner for Refugees (UNHCR).


 

Madeline Gleeson

Senior Research Associate

Andrew & Renata Kaldor Centre for International Refugee Law