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:
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 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:
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).
European Convention on Human Rights
In addition to the CEAS, Europe has one of the world’s most advanced regional human rights systems. At the core of European human rights law is the European Convention on Human Rights (ECHR) (formally the Convention for the Protection of Human Rights and Fundamental Freedoms), a comprehensive treaty for the protection of human rights and fundamental freedoms in Europe, adopted as the world’s first human rights treaty by the Council of Europe on 4 November 1950. The ECHR entered into force in 1953, and has subsequently been amended and expanded by sixteen Protocols. All 47 Member States of the Council of Europe are parties to the ECHR.
State parties to the ECHR agree to secure the rights and freedoms contained therein to everyone within their jurisdiction, and the provisions of the Convention have been incorporated into the domestic legislation of each state party. Accordingly, domestic courts should have jurisdiction to hear cases and make decisions regarding the application of the ECHR in each state’s territory.
European Court of Human Rights
At the regional level, the ECHR also provided for the establishment of the European Court of Human Rights (ECtHR), a permanent international court set up in 1959 with jurisdiction to rule on all matters concerning the interpretation and application of the ECHR. The Court may receive applications from any person, group of people or non-governmental organisation claiming to be the victim of a violation of the rights set out in the ECHR by one of its state parties. States can also refer alleged breaches of the ECHR to the Court directly, and the Court has competence to give advisory opinions on legal questions concerning the interpretation of the ECHR and/or its Protocols. However, the Court may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law.
Judgments of the ECtHR are final and binding on states in any case to which they are a party. When the Court delivers a judgment finding that a violation of the ECHR or one of its Protocols has occurred, the Court transmits the file to the Committee of Ministers of the Council of Europe, which confers with the country concerned and the department responsible for the execution of judgments to decide how the judgment should be executed, and how to prevent similar violations of the ECHR in the future. The outcomes of such conferral may include general measures (e.g. amendments to domestic legislation) and/or individual measures (e.g. to ensure the state pays any amounts awarded by the Court as compensation for damage to the relevant victims).
Relevant case law of the European Court of Human Rights
The ECtHR has delivered a number of significant judgments relevant to European asylum law, including judgments concerning the detention of refugees and migrants, the collective expulsion of aliens, and the application of the Dublin system (e.g., in cases where applicants claim that return to the EU country which would ordinarily be responsible for examining their asylum application under the Dublin Regulation would violate one or more of their rights under the ECHR).
Key case law of the ECtHR concerning European asylum law includes:
For a comprehensive record of the case law of the European Court of Human Rights as it relates to refugees, asylum seekers and stateless people, see UNHCR’s The Case Law of the European Regional Courts: the Court of Justice of the European Union and the European Court of Human Rights.
Senior Research Associate
Andrew & Renata Kaldor Centre for International Refugee Law