On 7 May, in record time, the European Parliament endorsed the measures proposed, last December, by the European Commission aiming at creating a common European asylum system.

The UK could opt-out nevertheless the Government has decided to opt into all measures establishing a Common European Asylum System. The UK Government believes that it is important to create such system. It is well know that Labour has been handing over the UK borders control to Brussels.

The proposals are going through the codecision procedure.The MEP’s adopted amendments to the proposals repealing and replacing: the Directive on reception conditions for asylum-seekers, the Dublin Regulation and the Eurodac Regulation. The European Parliament also adopted a report approving, with amendments, the creation of a European Asylum Support Office, recently proposed by the European Commission. The MEPs table amendments aimed at strengthening solidarity between Member States.

The Reception Conditions Directive provides for several rights to be made accessible for asylum-seekers while awaiting a decision on their application for international protection.

Under the Commission proposal Member States will be required to give asylum seekers access to the labour market no later than six months after they make their applications for international protection. Therefore, asylum-seekers would no longer have to wait one year. The European Parliament has endorsed such provision. The UK Government is concerned that such requirement may encourage unfounded claims since people will be more likely to come to the EU and claim asylum to benefit from those rights and not because they need protection.

Moreover, the Commission’s proposal would require Member States 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 government is also concern with this requirement. The government believes that it already provides adequate material assistance in order to give the applicants a sufficient level of subsistence.

According to the European Parliament material reception conditions may be in the form of financial allowances or vouchers. The European Parliament believes that a requirement to make provision in the form of money is a considerable pull factor likely to cause additional illegal immigration. MEPs deleted, from the text, the method proposed by the Commission for calculating the amount of assistance to be granted to asylum seekers.

The European Parliament maintained the provisions proposed by the Commission on the grounds to detain asylum applicants. The European Commission has proposed to limit detentions to exceptional and clearly defined cases. Under the proposal Member States must not hold a person in detention just for the reason that he/she is an applicant for international protection. Member State may only detain an asylum seeker if other less coercive measures cannot be applied effectively. The proposal will require that detentions must be approved by judicial authorities or confirmed by them within 72 hours. According to the Minister of State at the Home Office, Phil Woolas, “In the UK third country nationals 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 “Our detained fast track system was introduced to deal with asylum seekers whose claims appear straightforward and capable of being decided quickly.” According to the Government the proposal provisions on detention might jeopardise this system. The UK law does not require judicial approval of the detention of asylum seekers. The Government believes that such provisions are not necessary since in the UK there are already enough safeguards; applicants may challenge the lawfulness of their detention before the courts and may also apply for bail.

The European Parliament has also introduced an amendment whereby Member States would be required to ensure that asylum seekers held in detention have access to appropriate medical treatment and psychological counselling. The MEPs are also demanding that asylum seekers should be granted the opportunity to establish contact with social workers and religious visitors.

The Commission has proposed that asylum seekers shall have access to free legal assistance and/or representation in cases of detention where they cannot afford the costs involved. According to the European Parliament legal assistance for asylum seekers should remain free of charge in all cases.

The UK government has recently decided not to opt in to the revision of the EU Directive on Reception Conditions for Asylum Seekers. This is the first time that the Government has decided to opt out from an asylum measure. Nevertheless, the Government has decided to opt into the Dublin regulation and the EURODAC fingerprint. According to the Government the detention and labour market provisions might have created some implications for the UK. The Government believes that the proposal instead of combating abuse of the asylum system would have the effect of encouraging it and consequently making it harder to protect those you really need help.

According to the European Union Committee of the House of Lords, the UK Government's decision not to opt-in to this proposal raises doubt over the UK's legal position when it decides not to opt-in to EU amending legislation. The Commission has proposed to repeal the existing measures and replace them with the proposals. The House of Lords believes when the initial measure is repealed in its entirety and replaced by a subsequent measure, if the United Kingdom does not opt in to the subsequent measure then it is not bound by its provisions including the provision effecting the repeal of the initial measure. Hence, the original measure would continue to apply in the UK in its no amended form. According to the Government if the old measure is repealed it ceases to exist therefore by deciding opting-out to the new Directive the UK will automatically cease to be ruled by the old Directive on reception conditions.

Moreover, the House of Lords recall that the Lisbon Treaty introduced a new provision into the fourth Protocol to the EC Treaty. It pointed out “If, as is possible, the Treaty of Lisbon comes into force before the (inevitably lengthy) negotiations on these proposals are concluded, the United Kingdom will perhaps be told that if it does not opt in to the Reception Directive after its adoption (using Article 4 of the Protocol), the two Dublin Regulations will be disapplied under Article 4a.” Under the Lisbon Treaty, the UK can opt out of amendments to legislation from which it has already opted in. However, if the Council decides that the non participation of the UK in the amending version of an existing measure makes the application of that measure inoperable for other Member States or the Union, it may urge the UK to take part in the adoption and application of the proposal. If the UK decides not to participate in the amendment, the Council acting by QMV may determine that the UK shall bear the direct financial consequences incurred as a result of the cessation of its participation in the existing measure. The UK will be, therefore, under pressure to participate.

The European Parliament also adopted a report amending the 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 – the so called Dublin Regulation. The proposal lays down deadlines to make the procedure for determining responsibility more efficient and quicker.

The Commission has also amended the proposal in order to strengthen the legal safeguards for applicants for international protection as well as to strengthen the right to family unity.

The Government is concerned over the Commission proposal to introduce “dependent relatives” in the criteria for deciding which Member State should decide an application. 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 or a new-born child, 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. According to Phil Woolas “In the experience of the UK Border Agency it is often very difficult to determine whether alleged family members are related as claimed, because of the absence or poor quality of documentation or a lack of consistency in verbal statements.” Moreover, he said “There is also a risk of states unwittingly endorsing the trafficking of children or vulnerable adults to join claimed ‘relatives’, which raises obvious concerns about the individuals’ safety.”

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

Moreover, the Commission’s proposal would introduce a new procedure allowing for the temporary suspension of Dublin transfers which the European Parliament also endorsed. However, according to the European Parliament “(…) the Dublin system was not intended to be a mechanism for equitably sharing responsibilities with regard to the examination of applications for international protection.”

The European Parliament taking into account that several Member States are particularly exposed to migratory flows has proposed legally binding instruments, to be set up before 2012, to ensure greater solidarity between Member States when managing asylum applications, such as setting up teams of national experts, under the aegis of the European Asylum Office, to assist Member States confronted with a large number of asylum applications, where applicants cannot benefit from adequate standards of protection and, where the reception capacities of one Member State are insufficient. The European Parliament also voted to include in the proposal the creation of a reallocation scheme to reallocate beneficiaries of international protection from Member States which granted them this protection but are facing specific and disproportionate pressures to other Member States. Such legally biding instruments to enhance burden sharing between Member States go much further than the Commission proposal for the temporary suspension of the Dublin system. It seems that Member States would have to take in asylum-seekers from Member States facing asylum pressure.

The European Parliament voted to add a clause stating that on a proposal by the Commission, and acting in accordance with the codecision procedure, “instruments shall be enacted, binding on all Member States, in order to provide effective support to those Member States which are faced with specific and disproportionate pressures on their national systems due, in particular, to their geographical or demographic situation.” According to the European Parliament the provision on temporary suspension of transfers shall cease to apply as soon as the abovementioned instruments have came into force.

The European Parliament also approved the creation of a European Asylum Support Office as well a decision under which the funding of the EASO will be facilitated by redeploying some of the funds currently allocated to the European Refugee Fund.

The Office will be responsible for facilitating, coordinating and strengthening practical cooperation among Member States on asylum matters as well as contributing to the implementation of the Common European Asylum System. The UK supports the overall proposal and it has decided to opt into the draft Regulation. Nevertheless, the Government is particularly concerned about the EASO cost and size.

The Commission has proposed that the Office will support the implementation of solidarity mechanisms to promote, on a voluntary and coordinated basis, a better reallocation of beneficiaries of international protection from Member States facing specific and disproportionate pressures on their national asylum systems to others however the European Parliament considers that such reallocation “on a voluntary basis” will not enhance solidarity between Member States. Consequently, the MEPs proposed to delete the term “on a voluntary basis” from the proposal and proposed a binding solidarity mechanism to reallocate beneficiaries of international protection from such Member States to others.

The European Parliament has therefore voted for the Office implement the future system of mandatory solidarity for reallocating beneficiaries of international protection.

The European Parliament voted to specify that Member States subject to particular pressure or mass influx of asylum seekers into their territory may request the Office for the deployment of an asylum support team. The Office will coordinate the deployment, for a limited time, of the asylum support team in the territory of the requesting Member State.

The asylum support teams will provide expertise about interpreting services, information on the countries of origin. The UK Government is concerned that the EASO would “organise, promote and co-ordinate the “analysis of country-of-origin information” which, according to the Minister, may allow the EASO “to play a role in deciding when asylum seekers from certain countries should be granted protection.”

The European Parliament also amended the text introducing provisions on civil liability and criminal liability of the asylum support teams.

The Council of Ministers has not adopted yet a common position on the different proposals. The Council will discuss the measures at its next meeting, in June. The European Parliament will soon enter into, behind close doors, negotiations with the Council and the Commission in order to find an agreement on the proposed texts.

As there is no veto power the UK has a reduced influence over the proposals. The UK has decided to opt out from the new Reception Conditions Directive but it has decided to opt into the amended Dublin regulation. The European parliament is proposing unacceptable amendments if endorsed by the Council the UK might have to accept asylum seekers from other Member States. The EU cannot force Member States to take asylum seekers. Moreover, the House of Lords has pointed out that there are several cross-references in the Commission’s proposal amending the Dublin Regulation to provisions on the proposal amending the Reception Conditions Directive. Hence, the UK negotiations on the Dublin Regulation are likely to become even more difficult. For instances, the amended Dublin Regulation would require Member States to ensure that asylum-seekers detained during the Dublin procedure benefit from the same level of reception conditions as provide in the amended Reception Conditions Directive. It remains to be seen if the UK will be able to persuade the majority of the Member States to amend or delete such cross-references and to clarify that the UK participation in the new Dublin Regulation does not entail the observance of the requirements contained on the draft directive on reception conditions.