The Hague Programme agreed by the European Council in 2004 called for the Commission to present the second-phase of instruments of the Common European Asylum System (CEAS) with a view to their adoption before the end of 2010. The first phase in the creation of a Common European Asylum System has now been achieved however the main objective of the Common European Asylum System is the establishment of a common asylum procedure and a uniform status for persons in need of international protection valid throughout the EU.
Last July, the Commission adopted a Communication entitled “Policy Plan on asylum, an integrated approach to protection across the EU.” The Commission has pointed out that several shortcomings were identified in the legislative instruments of the CEAS’s first phase. According to the Commission the existing common standards are not enough therefore it will propose amendments to the current legislation as well as new instruments to complete the second phase of the CEAS.
On 3 December, the Commission has adopted concrete proposals to implement the Policy Plan on Asylum and the Pact on Immigration and Asylum which are the first proposals of the second phase of the asylum legislation. They represent a legislative step towards the single asylum system for the whole of the European Union. Hence, endeavouring to further harmonise asylum rules, the Commission has presented proposals to amend three of the existing legislative instruments of the Common European Asylum System: the Directive on reception conditions for asylum-seekers, the Dublin Regulation and the Eurodac Regulation.
The Commission will make further proposals in 2009. It will amend the Qualification Directive and the Asylum Procedures Directive and it will propose the establishment of a European Asylum Support Office.
The UK is not part to the Schengen agreement and it has an opt out from Title IV of the TEC (visas, asylum, immigration, judicial cooperation in civil matters). Nevertheless, the Government has opted into to all proposals concerning asylum and almost all proposals concerning illegal migration. The UK Government has decided to opt into measures establishing a Common European Asylum System therefore once such decision is taken, and the measures have been adopted, the UK is bound by them. The UK has been losing its sovereign powers to the EU, borders control is an example. The decision of the Government to opt into an EU common asylum system has further weakened the UK’s border controls. As there is no veto power and measures are adopted through the codecision procedure the UK has a reduced influence over the development of a common asylum policy.
The development of a common European asylum system will have a significant impact on the UK’s future asylum policy. The UK is obliged to ensure that its policy and practice does not conflict with the EU asylum legislation.
Reception Conditions Directive
This Directive provides for several rights to be made accessible for asylum-seekers while awaiting a decision on their application for international protection in the host country such as access to work, housing, education, healthcare and freedom of movement.
The Commission has stressed that the directive has achieved an important level of harmonization however “there is still room for EU action in view of ensuring higher and more harmonised standards of treatment in relation to the reception of asylum seekers.” According to the Commission the Reception Conditions Directive allows a considerable amount of discretion to Member States in several key areas therefore it wants to amend this instrument in order to limit the Member States margin of discretion and to achieve further harmonization.
On 3 November, the Commission has adopted a proposal amending directive 2003/9/EC laying down minimum standards for the reception of asylum seekers. The Commission wants to ensure higher standards in terms of reception conditions for persons in need for international protection further harmonising the national rules on reception conditions.
The Commission has proposed to extend the scope of this Directive to include applicants for subsidiary protection.
The Commission has proposed common rules making it easier for asylum-seekers to work while their applications are pending. Hence, under the Commission proposal, asylum-seekers would no longer have to wait one year but six months after submitting an application for international protection before being allowed to work. The Commission has said that “the imposition of national labour market conditions shall not unduly restrict access to employment for asylum seekers.”
Liam Byrne, the Minister of State at the Home Office, has said to the European Scrutiny Committee that the Government is concerned with the Reception Conditions Directive amendments that would promote easier access to the labour market. The Government believes that such provisions “(…) would encourage fraudulent claims from individuals looking to abuse the asylum system to gain access to the labour market.” According to Liam Byrne “An increase in unfounded claims would make it difficult for us to focus our resources on those in genuine need of international protection.”
The Commission’s proposal would required Member States when granting financial support to asylum seekers to take into account the level of social assistance provided to nationals. Member States would have to calculate the amount of assistance to be granted to asylum seekers in order to ensure that the asylum seekers total value of material reception conditions is equivalent to the amount of social assistance granted to nationals requiring such assistance.
The European Commission wants to establish common rules on the detention of asylum-seekers. The proposal main principle is that a person should not be held in detention just for the reason that he/she is seeking international protection. The proposal is aiming at ensuring that detention is used only in exceptional cases and provides for legal safeguards. The Commission has proposed to limit detention to exceptional and clearly defined cases. Under the draft proposal, a Member State may only detain an asylum seeker if other less coercive measures cannot be applied effectively, and in order to determine his identity, to determine the elements of his application for asylum, to decide on his right to enter the territory and when it is required for the protection of national security and public order. The Commission has stressed that detention shall be ordered for the shortest period possible. Under the draft proposal, in the first three cases, detention shall not exceed the necessary time to fulfil the administrative procedures required.
Liam Byrne has stressed that "The UK already has high standards of treatment of those in the asylum system.” He explained to the ESC that “No one is detained simply because they have made an asylum application and every case is considered on its individual merits. Third country asylum seekers are only detained when they meet specific detention criteria such as for the purposes of removal or where there is a risk of absconding.” Moreover, he said “The detention of asylum seekers whose applications appear straightforward and capable of being decided quickly also remains an important component in the maintenance of a fair but robust and effective asylum system.”
Asylum-seekers would have greater access to information to their case and stronger rights of appeal. The Commission has proposed to limit the cases under which reception conditions could be fully withdrawn. Moreover, Member States are required to ensure that negative decisions relating to the granting, withdrawal or reduction of benefits under this Directive may be the subject of an appeal before a judicial body.
The Commission has therefore proposed to limit the circumstances where Member States might exceptionally set up modalities for material reception conditions different from those provided under the Directive.
Dublin Regulation
The so called Dublin Regulation, which came into force in 2003, provides the criteria to establish which Member State is responsible for examining an asylum claim. Under the Dublin Regulation the responsibility for examining an application lies with the Member State which played the greatest part in the applicant's entry into and residence in the territories of the Member States. The main principle is that the Member States which allow an asylum seeker to enter the EU (whether legally or illegally) is responsible for deciding his claim. There are other factors, such as the presence of family members in another Member State, which are considered in a hierarchical order.
According to Jacques Barrot, Commissioner responsible for Justice, Freedom and Security, “this legislation, by stipulating that the asylum request must be done and dealt with in the refugee’s first host country, has allowed us to put a stop to the phenomenon of ‘asylum shopping” however he said “this regulation penalises asylum applicants, who very often do not have the possibility of arriving anywhere other than in Member States that do not have the means necessary to welcome them.” For Jacques Barrot “there is an injustice as all countries do not have the same burden, but it is also unfair to asylum applicants."
The Commission has adopted a proposal for a Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third country national or a stateless person which recasts the Dublin Regulation. The proposal aims to increase the efficiency of the system and to ensure higher standards of protection for asylum seekers.
The Commission has proposed to extend the scope of the Regulation application to applicants for subsidiary protection.
The Commission has proposed several amendments in order to ensure that the responsibility determination procedure operates smoothly.
The Commission has inserted a provision requiring the organisation of a compulsory interview in order for the national authorities to gather all necessary information to identify the Member State responsible for examining an application for international protection.
The Commission has also amended the proposal in order to strengthen the legal safeguards for applicants for international protection. The draft Regulation specifies in great detail the content, form and the timing for providing information to applicants for international protection and foresees the adoption of a common information leaflet to be used in all Member States.
The Commission has proposed to strengthen the right to family unity. It has extended the right to family reunification to include family members who are beneficiaries of subsidiary protection and who reside in another Member State. The Member State’s responsibility is determined on the basis of the situation obtaining when the asylum seeker first lodged his/her application for international protection with a Member State. The proposal would ensure that possible new elements regarding the family situation of the asylum seeker are taken into account by the Member State on whose territory the asylum seeker is. The draft proposal makes compulsory the reunification of dependent relatives and of unaccompanied minors with relatives who can take care of them.
The Member State responsible for examine the application for international protection of unaccompanied minors is the one where a member of his or her family is legally present. The Commission has now proposed a provision which requires that the Member State responsible for examining the application where members of the applicant's family or his/her other relatives are legally present in more than one Member State must be decided on the basis of what is in the best interests of the minor.
Under the draft proposal if the asylum seeker is dependent on the assistance of a relative present in another Member State on account of pregnancy, serious illness, severe handicap or where a relative present in another Member State is dependent on the assistance of the asylum seeker, the Member State responsible for examining the application must be the one considered the most appropriate for keeping them together.
The conditions and procedures for implementing these provisions would be adopted by the Commission through the comitology procedure.
The Commission has also clarified the circumstances and procedures for applying the discretionary clauses (humanitarian and sovereignty) aiming at ensuring a more uniform application of the Regulation by the Member States. The draft proposal provides that any Member States should be able to derogate from the responsibility criteria, so as to make it possible to bring family members together where this is necessary on humanitarian ground. Each Member State may decide in particular for humanitarian and compassionate reasons to examine an application for international protection lodged with it by a third country national or a stateless person even if such examination is not its responsibility under the binding criteria laid down in the Regulation, provided that the concerned Member State and the applicant agree to that.
The draft proposal foresees that the Member State which is carrying out the process of determining the Member State responsible may request another Member State to take charge of an applicant in order to bring together family members, as well as other dependent relatives, on humanitarian grounds, even if it is not responsible under the criteria laid down in the Regulation. The requested Member State would be required to give a decision on the request within two months of the date on which the request was received.
The Commission draft proposal also specifies the cases of cessation of responsibility clauses in order to ensure a uniform application of the Regulation.
The draft regulation provides that a Member State with which a subsequent application for international protection has been lodge and considers that another Member State is responsible it may request that State to take back that person. If the requested Member State agrees to take charge or take back an applicant the requesting Member State must notify the person concerned of the transfer decision. The draft regulation specifically provides that the notification of a transfer decision shall be made within fifteen working days from the date of receipt of the reply from the requested Member State.
The draft proposal also introduces additional guarantees concerning the right to appeal against a transfer decision. The proposal provides for the right to an effective judicial remedy, in the form of an appeal or a review, of the transfer decision before a court or tribunal. The competent authorities are required to decide as soon as possible, no latter than seven days from the lodging of an appeal or review, whether or not its enforcement should be suspended and to allow the person concerned to remain on the territory pending the outcome of the appeal or review. The Commission has stressed that no transfer must take place before this decision is taken.
The Commission has introduced a new provision on the transfer costs. Under the proposal, the costs necessary to transfer an applicant or another person to the responsible Member State are to be met by the transferring Member State. Supplementary rules concerning the obligation of the sending Member State to meet the costs of transfers may be introduced through the comitology procedure.
The Commission’s proposal would introduce a new procedure allowing for the temporary suspension of Dublin transfers. The Commission has stressed that “The temporary suspension of Dublin transfers can thus contribute to achieve a higher degree of solidarity towards those Member States facing particular pressures on their asylum systems, due in particular to their geographical or demographic situation.” Under the Commission’s proposal, Member States may request 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. Such request is addressed to the Commission.
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.
Under the draft proposal, the Commission may decide, through the comitology procedure, to suspend all transfers of applicants to the Member State concerned. The proposal provides that such decision shall be taken as soon as possible and at the latest one month following the receipt of a request. The Commission is required to notify the Council and the Member States of such decision. The Council would have one month form the date of the referral by a Member State, 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. 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 UK Government is concerned over the creation of a mechanism that would allow the temporary suspension of the Dublin System. According to Liam Byrne “The existence of a provision specifically related to reception conditions could reduce the incentive on all Member States to provide adequate reception conditions for those applicants for which they are responsible.” Moreover, he believes that “(…) it could provide an unwelcome pull-factor by encouraging individuals and traffickers to target particular Member States as points of entry in the belief that individuals could not be returned to the responsible Member States."
The proposals still have to be approved by the European Parliament and the Council through the codecision procedure. It should be mentioned that the measures necessary for the implementation of this Regulation would be adopted through the untransparent and unaccountable comitology procedure.
