Common-European-Asylum-System by qingyunliuliu

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									         EU CONSTITUTIONALISM SEMINAR




Common European Asylum System
                 (CEAS)

                Iwona Krzemioska
                   2011-06-04
                                                 Common European Asylum System


             Asylum and immigration are among policies contributing to the Area of Freedom, Security
and Justice in the European Union (AFSJ). The AFSJ is composed of a diverse and complex set of
policy areas which consists, among others, of issues related to judicial cooperation in criminal
matters, police cooperation, drugs, borders and citizenship. All of these areas have profound
implications for the relationship between liberty and security in Europe, and for the fundamental
rights of individuals as well. Until the beginning of 2010 in the European Commision there was a
separate DG responsible for the AFSJ, often named from French abbreviation JLS. The last two
Commissioners responsible for this DG were Franco Frattini and Jacques Barrot. In 2010 the DG
was spread into two separate DGs: the DG of Security and Home Affairs and the DG Justice, which
by some observers is seen as the increasing value of the AFSJ within the European Union.
             In this paper there will be covered the Common European Asylum System, mainly from the
legal perspective, but where it is inevitable with reference to economic and social issues. To
introduce the subject and justify the choice from the wide range of AFSJ policy, I would like to refer
to Mr Jacques Barrot: “the founding values of the Union, and our shared history of tragedy and
reconciliation, in my view compel us to extend the hand of hospitality and solidarity with those
facing persecution around the world. This for me is one of the greatest challenges, on a truly global
scale, facing the future of European integration (...) the need for the improved integration of new
arrivals, refugees and regular migrants remains. Immigration enriches European society and
strengthens innovation in the economy”1.
             In the Introduction, there will be highlighted international refugee law binding all EU
Member States and the current EU legal measures in the field (the Lisbon Treaty, Dublin II
Convention and the Stockholm Programme). The main body of the paper is divided into two areas:
the development of CEAS with reference to treaties, directives, programmes, action plans; and the
role of the the European Court of Justice (ECJ) and regional jurisdiction.
Introduction
             All EU Member States are signatories to the UN Convention relating to the status of refugees
(the 1951 Geneva Convention) and have reaffirmed their utmost commitment to the protection of all
persons at risk of torture or inhuman or degrading treatment in their country of origin. The inclusion
of international protection in the AFSJ has made EU a new actor on the field of refugee protection.
This arena is already well populated at the international level. Not only are there three UN
Conventions that all Member States have ratified and which place protection obligations on signatory
states (the Geneva Convention, the International Covenant on Civil and Political Rights and the


1
    The EU’s Area of Freedom, Security and Justice: Successes of the last ten years and the challenges ahead, Jacques Barrot, Brussels 2010

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                                               Common European Asylum System


UN Convention against Torture), there are also the institutional actors, including the UN High
Commissioner for Refugees, responsible for a broad protection mandate. At the European regional
level, the ECHR includes a duty of protection where there is a substantial risk that an individual
would suffer torture, inhuman or degrading treatment if sent to his country. The European Court of
Human Rights in Strasbourg has been vigilant in the protection of individuals from such risks. Into
this crowded field the EU has moved and taken its place. However, this step has not been without
certain perils2.
             At the moment there are five crucial directives which together contributes to the Common
European Asylum System. One of the core measures of the CEAS was the Dublin II Regulation3
which allocates responsibility for asylum applications and the care of the applicant according to
specific rules that in practice usually means the country through which the asylum seeker first
entered the EU is responsible. Because of the inadequacy of reception conditions in one member
state (Greece), the constitutional courts of a number of other member states have halted any returns
of asylum seekers there and the European Court of Human Rights has issued stays of return in
numerous cases pending its examination of the situation.
             The CEAS was introduced into EU treaty law by the Treaty of Amsterdam. But this is the
Treaty of Lisbon which made significant step forward and which is covered closer in the second part
of the paper. Briefly, the role of the Court of Justice in future decision-making on asylum after the
Treaty of Lisbon will be crucial. On the other hand, any failure in this area will result in a serious
problem for the legal coherence of the EU and deep damage to the EU‟s reputation as an actor in the
field. How the EU lives up to its commitments with respect to refugee protection law will be an
important measure of its human rights credentials.
             The Stockholm Programme, which sets out a number of goals for the AFSJ for 2010-2014
looks towards a Europe of responsibility, solidarity and partnership in migration and asylum
matters. As the EU population is ageing, and the effective management of migratory flows is one of
the greatest challenges facing the Union. Immigration has a valuable role to play in securing the
EU‟s strong economic performance over the longer term. With the approach to immigration and
asylum based on solidarity, EU will seek to tackle illegal immigration networks, ensure the
successful integration of legal immigrants and honour its obligation to provide asylum to victims of
persecution. In May 2008, while finishing his cadency of JLSCommissioner, Mr Barrot admitted that
not reaching the target of creating CEAS had a wider background: “I have fought passionately for
such a common system to be achieved by 2012. The economic downturn and rises in unemployment

2
    The Common European Asylum System and the European Court of Justice: New jurisdiction and new challenges Madeline V. Garlick, , Brussels 2010
3
    (EC) No. 343/2003

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                                                 Common European Asylum System


inevitably make member states more cautious in these matters. The Commission was not able to
convince the entire Council of the need for an immigration code and for applying the principle of
mutual recognition of decisions to grant international protection”.4
             According to Mr J.Barrot, the Stockholm Programme highlights the role of Europe in a
globalised world. A robust external dimension to EU policies will ensure consistency with the
Union‟s foreign policy as a whole, and enable EU to promote its values in compliance with
international human-rights obligations. Effective engagement with partners in non-EU countries and
international organisations in the area of justice and home affairs will be essential. This programme
is the blueprint for developing the european area of justice, freedom and security in the years to
come.
Development of CEAS
             Since the mid-1980s EU Member States have saught to harmonise asylum proceedings
across the Union. However, the process was difficult from the very beginning. In 1985 the European
Commission, established a communication and consultation procedure on migration policies. In
essence, the Commission required from the Member States to inform the Commission and the other
Member States of data about workers entering from non-Member States and of any draft measures or
policies applicable to these individuals. The Commission or a Member State could initiate a
consultation procedure to exchange information, identify common problems, and suggest common
measures to harmonize national legislation concerning these workers.
             Denmark, France, Germany, the Netherlands, and the United Kingdom brought an action
under Article 173 of the EEC Treaty, Treaty Establishing the European Economic Community,
seeking a declaration that the communication and consultation procedure on migration policies was
void. They were arguing that it had exceeded the scope of its authority and intruded into matters
reserved to the national authority of the Member States. The state parties conceded that Article 117
of the EEC Treaty required Member States to improve working and living conditions for workers in
order to establish and maintain a common market and that Article 118 authorized the Commission to
promote cooperation between Member States in terms of the social conditions regarding employment
and working conditions. They argued, however, that these legal provisions only concerned European
Community workers who moved from one Member State to another. They accused the Commission
of overreaching and encroaching upon powers left to the Member States because the Commission
sought information about policy initiatives concerning the migration of individuals from non-
Member States5.

4
    The EU’s Area of Freedom, Security and Justice: Successes of the last ten years and the challenges ahead, Jacques Barrot, CEPS, Brussels 2010
5
    A Tale of Two Decades: War Refugees and Asylum Policy in the European Union, Maryellen Fullertone, Brooklyn, 2009

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          The ECJ Judgment of July 9, 19876 ruled that the Commission„s decision requiring
information concerning immigrants from non-Member States exceeded the Commission„s authority.
The ECJ upheld the power of the Commission to collect limited kinds of information directly
relating to the workforce, but the ECJ agreed with the Member States that migration of individuals
from outside the Member States – including information gathering about this phenomenon - was
beyond the authority of the Commission and other EC institutions. This power resided in the
Member States. The Commission had success on only one issue: collecting information concerning
the integration of immigrants from non-Member States into the workforce of the Member States was
permissible because it related to the functioning of the common market. In hindsight, the 1987 ECJ
ruling marked the end of an era. When the ECJ ruled on the Commission„s information gathering and
sharing procedures in 1987, the law in effect was the Rome Treaty, the 1957 Treaty establishing the
European Economic Community. As since 1987 there has been a whirlwind of treaty negotiations
and ratifications in EU, accompanied by many vigorous disagreements about the extent of powers
the Member States were willing to assign to EU institutions.
          Five years after the 1987 ECJ Consultation Decision, the Treaty on European Union, known
as the Maastricht Treaty, stated for the first time that Member States regard immigration and
asylum policy as matters of common interest. The Maastricht approach envisioned an EU framework
supported by three pillars, and specified that asylum policy fell within the third pillar, which
concerned matters of ―justice and home affairs.7
          Limited progress in the area of community asylum law‟s creation was observed in the
Maastricht era, when Community action was limited due to the fact that asylum and immigration
issues were within the Third Pillar. This is contrasted with the more human rights based language of
later treaties and policy documents, including the creation of the Area of Freedom, Security and
Justice (AFSJ) where asylum and immigration became a central plank in the development of the EU
and was placed within the first pillar - Community competence.8
          The first significant step towards CEAS was the Dublin Convention, signed in 1990, but
taking effect in 1997, as it took seven years of haggling among the signatories to come into force.
This inter-governmental Convention was incorporated to the III Pillar under the Treaty of
Amsterdam. This legal instrument allowed signatory states to return asylum seekers to the first
country they reached in EU. The aim was to prevent multiple or several applications to Member



6
  Case 281/85, Judgment of 9 July 1987, [1987] ECR3203
7
  Treaty on European Union, signed Feb. 7, 1992, entered into force Nov. 1, 1993, 2006 O.J. (C 321E) 1 [Maastricht Treaty]
8
  The Common European Asylum System: Background, Current State of Affairs, Future Directions, Liam Thornton. Common Market Law Review. New
York: Dec 2007. V

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States by asylum seekers. However, in practice the results were not satisfactory9. Mainly because the
convention depended on documentation (states requesting a transfer to, for instance Germany, had to
prove that the asylum seeker passed through its territory), and the destruction of documentation by
asylum seekers is widespread. Furthermore, solidarity and cooperation between the Member States
was weak. The most controversial issue was in 1998 between France and UK about refugees housed
near Channel Tunel. But countries such as Greece, Italy or Spain felt increased pressure due to the
Convention.
          The Area of Justice, Freedom and Security was originally discussed in the Maastricht Treaty
(Articles 2 and 29 of TUE), but was amended and given much greater prominence by the
Amsterdam Treaty. Until this Treaty Member States retained power as to migration policies and the
Commission could only promote cooperation between them. Change was slow and took place partly,
as is well known outside the Community framework, with the Schengen Convention as the landmark.
The Treaty of Amsterdam gave a new impulse, but the process remained extremely complex due to
the double EU and EC regimes and Member States reluctance to give up prerogatives in the area of
security and public order, the practical effects of the measure adopted were slow to be felt10.
          After Dublin, further harmonization was limited by: the lack of common definition of a
refugee, a lack of agreement on burden sharing, and a lack of agreement on reception and processing
standards. Already in 1999, at the Tampere Summit the European Council issued a call for the
Common European Asylum System by 2004, with a uniform method of determining asylum within
the Member States and a uniform status valid for refugees throughout the European Union . CEAS is
meant to equalize burdens across the EU, as also to avoid so called „asylum shopping‟ by offering
one chance to access a common basket of legal social and economic entitlements11.
          The Tampere Conclusions stated: “This System should include, in the short term, a clear and
workable determination of the State responsible for the examination of an asylum application,
common standards for a fair and efficient asylum procedure, common minimum conditions of
reception of asylum seekers, and the approximation of rules on the recognition and content of the
refugee status. It should also be complemented with measures on subsidiary forms of protection
offering an appropriate status to any person in need of such protection. (…) In the longer term,
Community rules should lead to a common asylum procedure and a uniform status for those who are
granted asylum valid throughout the Union”.12



9
  The European Union after 9/11: The Demise of the Liberal Democratic Asylum Regime?, Carl Levy, Oxford, 2005, p.27
10
   The EU as an area of Freedom, Security and Justice: Implementing the Stockholm programme, Common Market law Review 47: 1307-1316, 2010
11
   EU efforts to create a Common European Asylum System, Oxford Analytica Daily Brief Service, Nov 10, 2004, p.1
12
   Tampere European Council Presidency Conclusions, 14, Oct. 15 – 16, 1999

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          As the Soviet Union collapsed, the European Union worried that it would be engulfed with
asylum seekers. Similarly, when Yugoslavia imploded, hundreds of thousands of refugees fled into
EU Member States. The Austrian government estimated that four million asylum seekers had entered
the European Union in the early 1990s, and called for joint action. Meanwhile, negative public
opinion about refugee camps and asylum seekers who did not present bona fide claims intensified
government concerns that trafficking organizations had grown more sophisticated in their delivery of
asylum seekers and other migrants to Europe. These pressures convinced Member States of the
desirability of a common asylum policy for the European Union. These and other developments
generated the political will to forge a Common European Asylum System (CEAS).13
          However, the events of 11th Sptember 2001 shocked the politics of asylum and the
immigration question was highly politicized which was mainly seen in Italy, France and the
Netherlands. As a result the positive Tampere spirit became less influential and the progress towards
CEAS was stalled, and in effect Tampere‟s target was not achieved until now. A renewed
commitment was made at the European Council Summit and expressed in Laeken Conclusions,
December 2001. It was stated that the range of CEAS proposals already on the table were
unsatisfactory and that the new approach was needed to “maintain the necessary balance between
protection of refugees, in accordance with the principles of the 1951 Geneva Convention, the
legitimate aspration to a better life and the reception capacities of the Union and its Member
States”14.
          EC committed clearly to shift the balance towards policies more co-ordinated and effective,
but also towards restrictive management of migratory flows. The Leaken Conclusions were that the
member nations will not agree to changes until they are certain that the CEAS will be at least as
restrictive at the regional level as their own policies are at national level. Generally the climate has
stopped the progress with condition of developing more fully the policies of illegal immigration,
people smuggling and mechanisms of returns. Despite the humanistic rethoric, the outcome was to
continue repatriation and rejection of large number of asylum seekers15.
          The first EU asylum legislation was the Temporary Protection Directive of 200116, which
in large part was a response to European fratricide in the 1990s. The refugees escaping the Bosnian
and Kosovo wars often fled hastily and in great numbers, with disproportionate impacts on EU
Member States. For example, Germany received 340,000 Bosnians in comparison to 15,000 who


13
   A Tale of Two Decades: War Refugees and Asylum Policy in the European Union, Maryellen Fullertone, Brooklyn, 2009, p.13
14
   Laeken Conclusions, SN 300/01
15
   Canadian Institute of International Affairs, 2002, p.9-10
16
   Council Directive 2001/55/EC on 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, July 20, 2001

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arrived in France, and 6,000 who reached the United Kingdom. 17 two years after the Kosovo
conflict, the Temporary Protection Directive provides a mechanism for EU-wide response to dire
situations. Specifically, mass arrivals of individuals fleeing armed conflict, endemic violence, and
systematic violations of their human rights may lead to a short-term protection program in the
European Union.
             If the European Council declares that the preconditions to trigger EU-wide temporary
protection have been established, all Member States must grant lawful residence to members of the
designated group for one year, which may be extended by six month periods for a maximum of one
more year. Art. 2(c) defines displaced persons, referring specifically to (i) persons who have fled
areas of armed conflict or endemic violence, and (ii) persons at serious risk of systematic or
generalized human rights violations. During that time, persons granted temporary protection will be
provided with residence permits, as well as basic welfare, medical care, and housing. They will not
be able to move freely within the EU and the Council may vote to end the period of protection at any
time.
             The terms of the Temporary Protection Directive place considerable limits on its actual
availability. First, the Temporary Protection Directive does not apply unless a mass influx of people
seeks protection. Discrete, small-scale disasters do not trigger its protections, which are premised on
large-scale emergency situations in which the numbers of forced migrants make it impracticable to
hold individual hearings on their qualifications for asylum. Secondly, the Temporary Protection
Directive places all relevant decision-making authority in a political body, the European Council.
The European Council must decide that a situation warrants the provision of temporary refuge by EU
countries. Moreover, Council‟s decision to invoke the Temporary Protection Directive must pass by
a qualified majority, which requires more than a 50% vote. The choice to entrust this power to the
European Council rather than the Commission guarantees that it will be rarely used. The reality is
that mass disasters, ethnic cleansing, and other events that force large groups of people to flee their
homes have a disproportionate impact on nearby countries. The past has proved that EU states
reeling from the localized impacts of refugee flows find it difficult to convince the geographically
distant Member States that joint action is warranted.18
             In recent years Malta, the smallest EU Member State, has repeatedly faced mass influxes of
asylum seekers and has contended that other EU Member States should assist Malta in responding to
the crisis. Malta„s location in the Mediterranean Sea, 200 kilometers north of Libya and 100
kilometers south of Sicily, have made it a landing point for thousands of asylum seekers departing

17
     Kosoo’s refugees in the European Union, Joanne van Selm (ed.), 2000, Table 5, p. 229
18
     A Tale of Two Decades: War Refugees and Asylum Policy in the European Union, Maryellen Fullertone, Brooklyn, 2009, p.14-17

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from North Africa by boat. It appears likely that armed conflict, endemic violence, or systematic
human rights violations may have impelled many of these individuals to flee. Nonetheless, there
seems to have been no realistic possibility that a majority of EU states would invoke the Temporary
Protection Directive in response to these surges of displaced persons. Several EU countries have
entered into small ad hoc arrangements to accept asylum seekers from Malta, but EU-wide responses
have been lacking.19
      In 2003, two years after the adoption of the Temporary Protection Directive, the EU adopted
legislation imposing minimum standards concerning the conditions in which asylum seekers live
while they present their applications for asylum. Known as the Reception Directive20, which
concerns asylum seekers meaning those who seek refugee recognition under the 1951 Geneva
Convention (as distinct from refugees- those who have received this status). It has obliged Member
States to: provide asylum seekers with information about the benefits they have within the specific
period of time; to give asylum seekers a recognised document identifying them as such; to set a time
period during which asylum seekers have no access to the labour market and grant it automatically
thereafter, if their case had not been decided; to provide asylum seekers‟ children with access to
education; to provide access for UNHCR and lawyers to accommodation centres; as also to provide
emergency centres.21
      Dublin II Convention, the new Dublin Convention came into force on September 1, 2003.
Generally, it aimed at speeding up the process of moving asylum seekers between Member States
and to create a greater clarity with respect to the country responsible for processing asylum
applications, e.g. when a member state requests another member state to take charge of an asylum
seeker for the first time, it must to do so within three months of the asylum seeker arriving; but if it
does not, the member state assumes automatic responsibility. Dublin II has assigned priority order
for attributing responsibility- firstly, the member state where the member of the family of the asylum
seeker is already settled as a refugee; secondly, the member state which had granted a stay permit to
the asylum seeker; thirdly, the member state which has granted a visa to the asylum seeker; finally,
the member state through which an asylum seeker first passed. Unfortunately, it does not deal with
the problem of destroyed documentation.22 Moreover, it resolved the documentation problem under
Dublin I by using compuerised EURODAC finger-print system. It functions well an let to identify
asylum seekers anywhere in the EU even if they lack documents. This was achieved under Danish


19
   Refugees: Tiny Malta Is Finally Heard, Tanya Walker-Leigh, Inter Press Service News Agency, July 20, 2009
20
   Council Directive 2003/9/EC Laying Down Minimum Standards for the Reception of Asylum Seekers, Jan. 27, 2003, 2003 O.J.
21
   Reception Directive, Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers
22
   Dublin II Convention, Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the
Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national

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Presidency in the EU in Automn 2002, and it remains to be seen that that time the Member States
had the political will to operate the system efficiently an fairly23.
          The Dublin II Regulation is complicated and asylum seekers caught up in the so-called
Dublin procedures can spend a significant amount of time in limbo. In these situations they are
waiting solely for the answer to a threshold question: which forum is appropriate? Dublin II
decisions may take months, and they never address the need for protection. They are merely prelude
to an examination of the substance of the application.24
          In the spring of 2004, just before ten new states joined the European Union, the Qualification
Directive25 elaborated the fourth element of the new asylum framework, defining those who qualify
for protection in the EU. It also prescribes the minimum legal protections that Member States must
afford to refugees and those in refugee-like situations. This Directive relies on the familiar
international definition for those entitled to refugee status, art. 2(c): “third-country national who,
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political
opinion or membership of a particular social group, is outside of the country of nationality and is
unable or, owing to such fear, is unwilling to avail himself”. It has become the new legal category
known as subsidiary protection. It is available for individuals who art. 2(e) “ [do] not qualify as a
refugee but in respect of whom substantial grounds have been shown for believing that the person
concerned, if returned to his or her country of origin would face a real risk of suffering serious
harm…”. It has established for the first time common standards for the recognition of a refugee and
has specified minimal welfare standards. Despite initial German objections, it recognises non-state
actors as possible sources of persecution, and it commits the Member States to the principle of non-
refoulement (not returning asylum seekers/refugees to lands where they face a well-founded fear of
persecution). Regarding welfare rights, it guarantees a right to three-years residence on the grant of
refugee status, and employment, health and social assistance on the same terms as Member States
nationals.26
          Many have criticized the hierarchy created by the Qualification Directive and the differences
in the scope of protection afforded refugees and those granted subsidiary protection status. The
European Parliament, the House of Lords Select Committee, Amnesty International, UNHCR, and
others argued that the distinctions are arbitrary because they are not tied to differences in need, are
likely to result in fragmentation of international protection, and will probably increase the numbers

23
   The European Union after 9/11: The Demise of the Liberal Democratic Asylum Regime?, Carl Levy, Oxford, 2005, p.32
24
   A Tale of Two Decades: War Refugees and Asylum Policy in the European Union, Maryellen Fullertone, Brooklyn, 2009, p.24
25
   Council Document 8043/04 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or
as Persons who Otherwise Need International Protection and the Content of the Protection Granted, April 27, 2004
26
   Qualification Directive, Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country
nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted

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of appeals by those refused refugee status yet granted subsidiary protection. Moreover, the
assumption that those entitled to subsidiary protection are likely to need protection on a more
temporary basis than refugees was strongly disputed. The political compromises that produced the
Qualification Directive, however, resulted in the two-tier approach.27
          With regard to the definition of a particular social group, the Qualification Directive adopts a
two-part approach: the traditional Acosta formulation and the social perception test. In other words,
members of a particular social group are those (1) who share innate traits, immutable backgrounds
or characteristics so fundamental to identity or conscience that they should not be forced to change
them, and (2) whom society perceives as a distinct group. As the two elements are not phrased in the
alternative, this may make it more difficult for some victims of persecution to qualify as members of
a particular social group. The Directive adds that gender alone does not create a particular social
group, but that gender-related aspects might be relevant to defining such a group. It also specifies
that sexual orientation can form the basis of a particular social group, so long as it does not include
acts criminalized by the national law of the EU Member States.
          Other compromises embodied in the Qualification Directive result in greater protection for
asylum seekers. Member States had strong and divergent views about what constitutes persecution
and whether asylum could be granted based on the actions of non-state actors. The Directive firmly
acknowledges that those persecuted by non-state actors are entitled to protection, so long as the state
or parties controlling the state are unable or unwilling to prevent the persecution. The Qualification
Directive also defines acts of persecution broadly. They include acts of physical or mental violence,
including sexual violence; disproportionate or discriminatory legal, administrative, police, judicial,
or penal measures; gender-specific or child-specific acts; and prosecution for refusing to perform
military service in certain circumstances.28
          The fifth component of the Common European Asylum System, the Asylum Procedures
Directive, took the longest to develop and consensus was difficult to reach. The law setting minimum
standards for the procedures used to decide asylum claims was finally approved in the last days of
2005, a year and a half after the deadline for adoption, with Member States allowed two additional
years in which to transpose its provisions into national law. The Procedures Directive addresses
many different aspects of asylum proceedings: basic procedural guarantees, initial decision-making,
detention, border and transit zones, withdrawal of refugee status, and appeal procedures.29


27
   The European Union Qualification Directive: The Creation of a Subsidiary Protection Regime, Jane McAdam, 17 INTL. J. REF. LAW 461(2005)
28
   A Tale of Two Decades: War Refugees and Asylum Policy in the European Union, Maryellen Fullertone, Brooklyn, 2009, p.26
29
   Council Directive on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status; OJ L 326, 12.12.2005
[hereinafter Procedures Directive]. The Directive was adopted on 1 December 2005, entered into force on 2 January 2006, and established a
transposition deadline of 1 December 2007.

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          Asylum procedures directive established minimum standards for recognizing an asylum
seeker as a refugee under the 1951 Geneva Convention, and for redrawing this status. Among the key
provisions are: a commitment to advise asylum seekers on how to make an application; the right to
remain while the application is processed; the right of the asylum seeker to be informed of their
rights and obligations in a language they understand; the right to a personal interview; the right to be
informed of reasons when a decision is not taken within six months; the right to a preliminary
examination; as also the right to an effective remedy in the case an application is rejected. However,
all abovementioned right are subject to qualifications, giving the states substantial autonomy such as
the power to reject applications automatically if: another member state has granted refugee status,
they view a non-member state country as the first country of asylum or a safe third country (in these
cases the asylum seeker is supposed to lodge the application there). Conditions for specifying third
countries are defined in Art.27, but the judgment which country is safe is made independently by
Member States, but the Council also agreed on a minimum list of safe third countries.30
          In addition to the five major legislative acts that comprise the Common European Asylum
System, the European Union has created several new entities. EURODAC, a central database for
comparing fingerprints of asylum seekers and other third-country nationals, as noncitizens of EU
Member States are called, is now in place. FRONTEX, a new agency to coordinate external border
enforcement and management, has come into existence. In 2006 and 2007 FRONTEX mounted
Operation Hera31 to intercept boats with migrants headed toward the Canary Islands and Operation
Nautilus to intercept migrants in the Mediterranean heading to Malta and Italy. In addition, the EU
has promulgated multiple migration measures that may substantially deter asylum seekers. For
example, the EU has adopted a common visa policy and has adopted laws placing duties, enforced by
monetary fines, on public carrier companies that bring unauthorized passengers to the EU.
          It is worth to note the broad discretion within a number of the directives, along with the effect
of the U.K., Irish and Danish Protocols in relation to Title IV measures, this may have the effect of
undermining the harmonization effect of CEAS. Some parts of directives which come in for praise
(ensuring a dignified standard of living for those within the asylum system, guarantees of procedural
fairness etc.) and other are widely criticized (different rights depending on whether an individual



30
   Asylum procedures Directive, COUNCIL DIRECTIVE 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for
granting and withdrawing refugee status
31
   FRONTEX carried out Operation Hera with two primary activities. First, experts from various Member States were deployed to support Spanish
authorities on the Canary Islands in their efforts to interview migrants and obtain information regarding their countries of origin and other knowledge
relevant to the flow of migration. Second, joint sea patrols were put in place along the coast of West Africa, involving Member States and third
countries who have agreements with Spain to participate in such patrols. Hera I (July 17, 2006 – October 31, 2006) involved expert deployment, Hera
II (August 11, 2006 – Dec. 15, 2006) focused on joint surveillance and patrol, and Hera III (Feb. 12, 2007 – April 12, 2007) involved both expert
deployment and patrol. http://www.frontex.europa.eu/examples_of_accomplished_operati/art5.html.

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                                             Common European Asylum System


applies for either protection as a refugee or as in need of subsidiary protection, safe country concepts,
suspensive effect of appeals etc.).32
          Another source of how CEAS was and is being created are working programmes prepared by
th European Council. The first working programme was launched and was followed by a second
pluriannual prgramme (2005-2010) adopted by the European Council of the Hague in 2004 (Hague
Programme). The Commission adopted two evaluation reports, as also a communication on the
adoption of the EC Treaty which was defined as desirable in order to guarantee more efficient
judicial protection by the ECJ.
          The entry into force of the Treaty of Lisbon on December 1, 2009 has meant a reschuffle of
EU initiatives in this domain, as the Treaty has given the ASFJ a very far-reaching over-haul, based
largely on the provisions of the Constitutional Treaty. The Stockholm Programme adopted by the
European Council in December 2009 sets the priorities for developing AFSJ in the next five years. 33
Its content reflects the discussions with the European Parliament, the Council, the Member States
and stakeholders over the recent years. In Communication of April 20, 2010 the Commision
proposes an action plan for the implementation of the Stockholm Programme34.
     “The European Area of freedom security and justice is together with the Europe 2020 strategy, a
key element of the EU’s response to the global long-term challenges and a contribution to
strengthening and developing the European model of social market economy into the 21st century
(…) In a period of change, as the world only starts to emerge from the economic and financial crisis,
the European Union has more than ever the duty to protect our values and to defend our interests.
Respect for everlasting values at a time of unrelenting societal and technological change. These
values must be at the heart of our endeavors”35.
          This reference to values is widely recognised as progressively added in order to build up the
concept of the “social market economy”. The perspective of creating in Europe the Area of Freedom,
Security and Justice implies a vast array of ambitions. At first sight it looks like a Christmas tree
produced by the Commission, without any research in terms of consensus or even feasibility on the
part of Member States. It is also lacking any visible effort to define priorities. But on the other hand,
each and every action defined has its legal basis in the treaties – the entry into force of the Lisbon
Treaty and the disappearance of the pillar structure have simplified things. In the Commission‟s
Communication there is an annex of over one hundred proposals within this area, which are “the
guide to Union’s actions and aim at delivering all the political objectives set by the European

32
   The Common European Asylum System: Background, Current State of Affairs, Future Directions, Olga Sidorenko, Rotterdam, 2008
33
   The EU as an area of Freedom, Security and Justice: Implementing the Stockholm programme, Common Market law Review 47: 1307-1316, 2010
34
   COM(2009)262 “An area of freedom, security and justice serving the citizen”
35
   COM(2010)171 “Delivering an area of freedom, security and justice of the Europe’s citizens Action plan implementing the Stockholm Programme”

                                                                      12
                                               Common European Asylum System


Council in the Stockholm Programme”36. Among which the core of our interest, the Commom
European Asylum System.
             Before passing to the second part concerning the jurisdiction over asylum matters, there will
be presented the financial view. At the end of 2009 there were around ten million refugees on the
planet and more than twenty seven million internally displaced persons. Both, refugees and internally
displaced people are among the most vulnerable ones in humanitarian crises. For these reasons, the
European Commission allocated 218 mln EURO in 2009 and 2010 to help 22 million refugees,
returners and internally displaced people around the world.37 Furthermore, 1 cent of every euro from
the EU budget is spent on the AFSJ.
             But we should keep in our minds the humanitarian background strongly underlined by
Cecylia Malström, European Commissioner for Home Affairs: “… offering asylum who those who
need it is an obligation, deriving from Europe’s long tradition of humanitarism and its international
commitment to protect the weak and vulnerable”.
ECJ and asylum jurisprudence at the regional level
             Ten years since the decision to establish the Area of Freedom, Security and Justice, the
European Court of Justice has had the opportunity to contribute to the development of EU asylum
law only through a limited number of cases. Following the Lisbon Treaty‟s entry into force at the end
of 2009, however, it appears that the scope and impact of the Court‟s activities in the field are likely
to increase significantly in future. In committing to “establish progressively an area of freedom,
security and justice” under Art. 61 of the Amsterdam Treaty, the Council agreed within five years to
adopt “measures on asylum, in accordance with the Geneva Convention of 1951 and the Protocol of
1967 relating to the Status of Refugees and other relevant treaties”.
             Along with all other areas under Title IV5 of the Amsterdam Treaty, the asylum provisions
in Art. 63 were made subject to the jurisdiction of the European Court of Justice. The Court
was empowered by Art. 68 TEC to acts based on Title IV, on a question arising in a case pending
before a court or tribunal “against whose decision there is no judicial remedy under national law”.
This meant that the Court of Justice would be able to provide interpretive rulings on EU asylum
legislation that would bind the member states – but only when asked by national courts of last
instance, and not by courts at lower levels. (This limitation of preliminary reference power to final
courts was seen as a means of ensuring that asylum cases would not flood the Court, given their
prevalence in many judicial bodies at the national level.)



36
     COM(2010)171
37
     Commisioners Malstrom, Georgieva creates CEAS with common rules based on high standards, US Fed News Serveice, Jun 19, 2010

                                                                       13
                                            Common European Asylum System


          With its explicit obligation to ensure that asylum measures would conform to the 1951
Convention38, the Amsterdam Treaty forged an essential link between the EU‟s legal order and the
international legal framework for refugee protection. Its reference to “other relevant treaties” also
incorporates by implication the provisions on asylum and non-refoulement– prohibiting the removal
of individuals to countries where they would face torture, inhuman and degrading treatment or
punishment – in the UN Convention Against Torture (CAT)39 and the International Covenant on
Civil and Political Rights (ICCPR)40, as well as the European Convention of Human Rights (ECHR).
Although all EU member states individually are party to these instruments, the effect of Art. 63 TEC
was to incorporate them explicitly into the EU‟s asylum framework and protection obligations.
          The political significance of this move was emphasized by Member States shortly after the
Amsterdam Treaty‟s entry into force, when the Council met and adopted the Tampere conclusions.
Those conclusions “reaffirm[ed] the importance the Union and Member States attach to absolute
respect of the right to seek asylum”, and confirmed that it had “agreed to work towards establishing a
Common European Asylum System, based on the full and inclusive application of the Geneva
Convention, thus ensuring that nobody is sent back to persecution, i.e. maintaining the principle of
non-refoulement”.
          This connection between Community law on asylum and the international protection system
was further strengthened in Declaration of the Amsterdam Treaty, providing that “consultations shall
be established with the United Nations High Commissioner for Refugees and other relevant
international organizations on matters relating to asylum policy”. This acknowledged the role of the
United Nations High Commissioner for Refugees (UNHCR) as the agency entrusted with
supervisory responsibility in respect of the 1951 Convention and further demonstrated the apparent
commitment of the drafters of the Treaty to ensuring that the EU‟s asylum rules would be developed
and applied in line with international refugee law.41
          Through these specific references to international and regional sources of law on asylum and
refugee protection, the Treaty framework ensured that the European Court of Justice assumed
jurisdiction over EU asylum law against a background of important and well-established
international and regional principles of refugee law. In addition to guiding texts such as conclusions
of the UNHCR‟s Executive Committee, these include a developed body of international and regional
jurisprudence. The extensive case law of the European Court of Human Rights (ECtHR), which is

38
   UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951
39
   Art. 3 of UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984
40
   Art. 7 of UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series




                                                                     14
                                             Common European Asylum System


particularly relevant to all EU member states, addresses many aspects of member states‟ treatment of
asylum seekers and other persons who may be at risk of persecution or serious harm if removed to
other countries. Such sources are available to assist the Court in defining and interpreting the
„general principles of law‟ that guide its decision-making processes, which include respect for
fundamental rights42.
          This link between the Court‟s jurisdiction over EU asylum law and existing developed case
law is particularly well illustrated in relation to the principle of non-refoulement. Key ECtHR cases
such as Soering43 established the principle that a state may not remove a person where there were
substantial grounds for believing that there would be a real risk of exposure to torture, inhuman or
degrading treatment or punishment in the receiving state. This prohibition on refoulement was found
to apply even where he had committed a serious crime, or if his continued presence in the respondent
state would be unconducive to the public good for reasons of national security, including in the
context of the fight against terror. Recently, in Saadi v. Italy44 the ECtHR affirmed the absolute
nature of this prohibition. The ECtHR‟s approach has been consistent with that of the UN Human
Rights Committee in relation to the non-refoulement obligation under Art. 7 ICCPR and of the
Committee Against Torture regarding Art. 3 CAT. Other asylum cases before the ECtHR have
examined different aspects of asylum procedures and systems. In the case of Gebremedhin v.
France, the ECtHR examined the nature of effective remedies, and concluded that states are
precluded from removing a person who is awaiting a decision on appeal against a negative decision
on his/her asylum claim. In Saadi v. UK45, it ruled on the lawfulness of detention for asylum seekers,
finding that administrative detention could be lawful provided that it had satisfied tests of necessity
and proportionality. In SD v. Greece46, it was concluded that poor conditions of asylum detention
may constitute inhuman and degrading treatment contrary to Art. 3 of the ECHR. These decisions
have thus established an important set of common principles, derived from a European regional
instrument, which is binding on all EU member states in the application of their asylum law.
          This case law has taken on particular significance in the EU following the adoption of the
Qualification Directive, which employs the wording of Art. 3 ECHR in its criteria for the grant of
subsidiary protection under Art. 15(c). Moreover, a series of cases is now pending before the ECtHR
regarding the risk of Art. 3 breaches through actual or proposed transfers from other member states
to Greece under the Dublin II Regulation. Applicants alleged in a number of cases that transfers
could result in their indirect refoulement from Greece to other countries where they would be at risk
42
   The Common European Asylum System and the European Court of Justice: New jurisdiction and new challenges Madeline V. Garlick, Brussels 2010
43
   Soering v. The United Kingdom (1/1989/161/217) [1989] 11 EHRR 439
44
   Saadi v. Italy (Appl. No. 37201/06), Council of Europe: European Court of Human Rights, 28 February 2008
45
   Saadi v. The United Kingdom (13229/03) [2008] 47 EHRR 17
46
   S.D. v. Greece (Appl. No. 5341/07), Council of Europe: European Court ofHuman Rights, 11 June 2009

                                                                      15
                                                 Common European Asylum System


of persecution or serious harm, or of further removal to face persecution or serious harm, because of
systemic weaknesses in Greece‟s asylum system. In some other cases, it was alleged that conditions
in Greece could of themselves amount to inhuman or degrading treatment, attracting responsibility
under the non-refoulement principle.
             Some observers have asked why the above mentioned cases arose in Strasbourg and not in
Luxembourg. One reason are the previous limits on national courts‟ power to refer preliminary ruling
requests to the Court of Justice. Prior to the Lisbon Treaty, Art. 68 TEC meant that only courts of last
instance had such power. Asylum cases relating to Dublin II, however, by their nature were rarely
able to come before the highest national courts. The limited information available to „Dublin‟
applicants regarding their rights, combined with extremely short time limits to challenge transfer
decisions and barriers to obtaining legal advice, collectively mean that challenges in Dublin cases are
often not pursued at higher judicial levels. As such, this severely limits the scope for such questions
– which raise critical issues of procedural fairness and affect thousands of people – to come before
the Court. It is hoped that the Lisbon Treaty changes will address the problem to a large extent.
             Following the adoption of the first asylum instruments as required under Art. 63 TEC,
member states began to apply the directly effective regulations on Dublin II and Eurodac, and to
enact domestic legislation transposing the various directives into national law. As these instruments
have progressively been utilised at the national level, the first preliminary ruling requests have been
made to the Luxembourg Court concerning asylum questions.
             The first request, in the case of Petrosian47, the Swedish (Migration) Court sought the
guidance of the ECJ on interpretation of time limits for transfer as defined under Dublin II. This
relatively technical decision was followed shortly thereafter by a ruling on a request from the Dutch
Council of State in the case of Elgafaj48i. In that case, the Dutch court had sought an interpretation of
the concept of “indiscriminate violence” in Art. 15(c) of the Qualification Directive, providing for
the grant of subsidiary protection to individuals threatened by such violence in situations of internal
or international armed conflict. The Court found that the degree of individual targeting that had to be
shown to establish an entitlement to protection varied according to the level and scope or widespread
nature of the violence. It also established that the criteria for granting protection under Art. 15(c)
were not the same ones as those for granting protection against removal established by Art. 3 of the
ECHR, which was found to correspond rather with Art. 15(b) of the Qualification Directive.
             These rulings were significant as the Court‟s first forays into the interpretation of Community
asylum law in its new area of jurisdiction under Title IV. Yet, in three subsequent requests referred

47
     Case C-19/08, Migrationsverket v. Petrosian and Others [2009] ECR I-00495
48
     Case C-465/07, Elgafaji v. Staatssecretaris van Justitie [2009] ECR I-00921

                                                                           16
                                             Common European Asylum System


in 2008 and 2009, the Court received its first cases addressing concepts in the Qualification Directive
that were based on specific 1951 Convention provisions. As such, these are the first cases in which
the Court has been asked to interpret acquis asylum provisions derived explicitly from the primary
international instrument on refugee law.
          The first of these, Abdulla and others v. Germany49, was ruled by the Grand Chamber in
March 2010. In its decision, the Court addressed the circumstances in which refugee status could be
considered to have ceased, in line with Art. 11(1) of the Qualification Directive and Art. 1C(5) of the
1951 Convention, including the relevance of claimed new threats of persecution or serious harm, and
the standard of probability and burden of proof to be applied in such cases. The Court acknowledged
in its judgement that the 1951 Convention “constitutes the cornerstone of the international legal
regime for the protection of refugees”, and that the Directive‟s provisions were adopted to “guide
Member States in the application of that Convention”. It also specifically recognised that the
Directive must be interpreted in light of its own general scheme and purpose, “while respecting the
Geneva Convention and other relevant 24 treaties”, and in a manner that “respects the fundamental
rights and principles recognised in particular by the Charter”.
          In these pronouncements, the Court appears to affirm its intention in construing the asylum
acquis to pay close regard to relevant international legal instruments. In answering the questions of
the German Federal Administrative Court, however, the Court also supported elements of the
Qualification Directive provisions that are not based on the 1951 Convention – finding among other
things that international organizations may be able to provide protection against persecution, in a
way that would justify the revocation of refugee status. This aspect of the Qualification Directive had
been questioned by the UNHCR and others, including on the basis of international law. Its
endorsement by the Court raises questions about the nature of the balance the Court will seek to
achieve between acquis concepts and international obligations in future judgments. The direction of
its future jurisprudence will thus be of great interest, bearing in mind also that the Court has in recent
years affirmed that fundamental rights form an “integral part” of the general principles of
Community law that it is bound to apply50.
          Further, opportunities to examine these questions will arise in the cases of Bolbol v.
Bevandorlasi es Allampolgarsagi Hivatal51, referred by the Budapest Metropolitan Court as well as
Germany v. B and Germany v. D and others52 from the German Federal Administrative Court, both
seeking interpretations of other Qualification Directive articles. In Bolbol, the Court is asked to
49
   Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08, Salahadin Abdulla and Others v. Bundesrepublik Deutschland
50
   The Common European Asylum System and the European Court of Justice: New jurisdiction and new challenges Madeline V. Garlick, CEPS, Brussels
2010
51
   Case C-31/09 and the Advocate General’s Opinion of 4 March 2010
52
   Case C-57/09 and Case C-101/09 – preliminary reference requests

                                                                      17
                                             Common European Asylum System


provide guidance on Art. 12(1) of the Qualification Directive, derived from Art. 1D of the 1951
Convention, relating to the entitlement of Palestinians to refugee protection. In Germany v. B, the
Court will pronounce its view on the exclusion clauses of the Qualification Directive, which are
similar – but not identical – to the related provisions in Art. 1F of the 1951 Convention.
          In all of the initial, preliminary reference cases above, with the exception of the Petrosian
case on administrative time limits, the UNHCR has issued a statement in relation to the questions
before the Court. Still, unlike in some other national and regional jurisdictions, including the ECtHR,
the UNHCR has not participated as a formal third party to the proceedings. Under Art. 23 of the
Statute of the ECJ, only EU institutions and the member states are entitled to intervene in a
preliminary ruling procedure. Unless it takes part as a party in the proceedings before the national
courts, in countries where this is possible, the UNHCR thus lacks standing under the Statute enabling
it formally to put its views to the Court to assist in its deliberations. While Declaration 17 of the
Amsterdam Treaty, requiring EU institutions to consult with the UNHCR, could be construed as
extending to the Court, this has not been seen as the basis for a right to intervene as a third party to
date. Given the importance of the questions under consideration for the future evolution of refugee
protection and asylum law in the EU, the UNHCR has chosen to issue its statements on the
preliminary reference questions in the form of public documents, available to all interested parties. In
each of the cases heard so far, one of the parties has submitted the UNHCR‟s statement as part of its
official documentation provided to the Court, increasing the likelihood that the UNHCR‟s opinion
might contribute to informing the deliberations around the case53.
          Two of the many changes effected by the Lisbon Treaty are particularly significant for the
Court‟s future decision-making on asylum. The first of these is the expansion of the scope of the
national courts empowered to request preliminary rulings. The Lisbon Treaty abolishes former Art.
68 TEC, which limited the right to request preliminary rulings to courts of last instance – meaning
that all national courts, and not merely the highest judicial bodies, will be able to make requests in
relation to asylum, immigration and visa issues. This has the potential greatly to increase the number
of rulings that will be requested, but also to extend the range and subject matter of questions that will
be put to the Court.
           Questions and provisions that may previously not have reached the highest courts can now
be sent by the judicial tribunals and courts, which are dealing with the bulk of appeals or reviews of
negative first-instance asylum decisions. This could be the case, for instance, with regard to Dublin II
cases that until now have not been heard in the European Court of Justice because of the short

53
  uNHCR Statement on Subsidiary Protection Under the EC Qualification Directive for People Threatened by Indiscriminate Violence, UNHCR,
Geneva, January 2008;http://www.unhcr.org/refworld/docid/479df7472.html

                                                                      18
                                             Common European Asylum System


timeframes and narrow appeal rights under most states‟ Dublin II procedures, which may have
prevented them reaching the highest level of domestic judicial structures.
          In March 2010, the first preliminary ruling request from a lower court came to the Court,
from Luxembourg. This request, the first relating to the Asylum Procedures Directive deals with
accelerated procedures and effective remedies – issues of great procedural importance for the
operation of lower-level judicial bodies. This could indicate that the extended scope for preliminary
reference requests will contribute beneficially to a more accurate and consistent application of basic
asylum acquis rules at a practical level54.
          The second major change is the conferral of legally binding effect on the EU‟s Charter of
Fundamental Rights. Art. 18 of the Charter, providing that the right of asylum “shall be guaranteed
with due respect for the rules of the Geneva Convention” can consequently be invoked directly55, not
only before the Court of Justice, but also at the national level. It is not clear how the Court will
interpret „right to asylum‟ or the nature of this „guarantee‟, nor the interplay between this article and
other provisions in the asylum acquis. Given that the Charter carries the same legal force as the
Treaties, it should in principle prevail over any inconsistent provisions in an EU directive or
implementing national law. This could potentially open the way for interesting and challenging legal
arguments in a number of areas, including notably access to asylum procedures and to protection.
          Similarly, Art. 19 of the Charter, affirming the principle of non-refoulement in terms of Art. 3
ECHR, will strengthen the application of this key principle. It could conceivably provide for
interesting discussion in exclusion cases, where member states seek to invoke the exclusion
provisions in Art. 17 of the Qualification Directive as grounds for denying subsidiary protection
under Art. 15(b). The Charter‟s unqualified non-refoulement obligation would appear to provide a
strong argument in favour of protection for individuals who might otherwise be at risk of removal
following rejection under Art. 17.
Conclusions
          The Lisbon Treaty, with its expanded preliminary reference provisions and legal force for the
Charter, has already opened a number of possibilities for the more comprehensive application of
international refugee law in European proceedings. Still, there are several future developments or
changes that could enhance the tools available for the Court to help it ensure full respect for the
rights of those in need of protection.


54
   The Charter of Fundamental Rights of the European Union and the Right to be granted Asylum, M.T. Gil-Bazo, Refugee Survey Quarterly, Vol. 27,
No. 3, 2008
55
   The Common European Asylum System and the European Court of Justice: New jurisdiction and new challenges Madeline V. Garlick, CEPS, Brussels
2010


                                                                      19
                                                 Common European Asylum System


             It is hoped that the Court‟s jurisprudence in preliminary reference cases will draw extensively
from refugee protection instruments at the international and regional levels, potentially drawing upon
fundamental rights concepts from Community law more generally. The overriding Treaty obligation
is for EU asylum instruments to comply with the 1951 Convention. Where EU secondary laws, such
as directives or regulations, depart from the wording or object of the 1951 Convention, close scrutiny
must be devoted to the issue of how those instruments can be reconciled with this Treaty
requirement.
             Next, the role of the UNHCR in relation to court proceedings may be a subject for further
reflection. Given the UNHCR‟s supervisory responsibility with respect to the 1951 Convention, it
has a direct interest and demonstrated expertise in the application of asylum law in the EU. Its
previous inputs to domestic and regional courts as intervenor have demonstrated its ability to
contribute constructively to court processes, including in relation to the ECHR, which on several
occasions has explicitly invited the UNHCR to intervene in key asylum cases. The present limitation
on the UNHCR‟s ability to intervene before the Court, based on Art. 23 of the Statute, may be
something to be addressed in future for the purpose of a more comprehensive and informed legal
debate.
             Finally, the Stockholm Programme puts forward a proposal that could positively influence the
development of the EU‟s asylum law, including through the courts. The Council in Stockholm stated
that subject to a European Commission study, the EU “should seek accession to the 1951 Geneva
Convention and its 1967 Protocol”. While the Amsterdam and Lisbon Treaties have already affirmed
the EU‟s obligation to respect the 1951 Convention, EU accession would have the benefit of
establishing a direct link between the Union institutions and the international protection system, as
well as strengthening institutional ties between the UNHCR and the EU. It would be welcomed by
other state parties to the Convention as a step that confirms the EU‟s commitment to refugee
protection, and would increase the Union‟s influence in discussions on the future development of
international refugee law and policy. It also has the potential to enhance understanding of and respect
for international protection norms throughout the courts of the member states. This could facilitate
the Court‟s task of ensuring compliance with the Convention at all levels of EU action on asylum56.
             At the heart of the current European asylum situation are two contradictions. First, in the
wealthy countries of Western Europe the Geneva Convention 1951 and the Protocol 1967 are
binding. So even if generally EU countries do not want immigrants, they are unwilling to disavow
Geneva Convention obligations. So the policy predicament of conscious European governments is to


56
     The Area of Freedom, Security and Justice, Ten years on, E.Guild, S.Carrera, Brussels 2010

                                                                            20
                                                   Common European Asylum System


defend Geneva‟s principles, but at the same time to avoid the burden of its full and fair
implementation. The second contradiction is that although Europeans do not want immigrants, they
need them. They certainly need a plentiful supply of cheap labour because of an aging population
and failing birth rates and an extensive social safety net that renders the indigenous population less
willing to take low-paying jobs. So even as foreigners are being barred entry, they may be needed
because of labour shortages and population decline. Some economists summed up the problem
niecely in an article “Go away we need you”.57




57
     Canadian Institute of International Affairs, 2002, p.9

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