The Common European Asylum System A critical overview of the law and its application

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1 Migration Law JUFN20 The Common European Asylum System A critical overview of the law and its application

2 CEAS: work-in-progress

3 Legal basis: Article 78 TFEU Common policy on asylum in line with the 1951 Refugee Convention and other relevant treaties. Common rules on: (a) recognition and content of refugee status; (b) subsidiary forms of protection for nationals of third countries; (c) temporary protection for displaced persons in the event of a massive inflow; (d) procedures for the granting and withdrawing protection; (e) criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection; (f) the reception of applicants for asylum or subsidiary protection; (g) partnership and cooperation with third countries for the purpose of managing inflows of people applying for asylum or subsidiary or temporary protection.

4 Current legal framework Qualification Directive 2011/95/EU (recast) applicable from Dec. 21 st 2013 Dublin Regulation 604/2013 (recast) applicable from Jan. 1 st 2014 Eurodac Regulation 603/2013 (recast) applicable from Asylum Procedures Directive 2013/32/EU (recast) appl. from Reception Conditions Directive 2013/33/EU (recast) appl. from

5 Other instruments EASO Regulation 439/2010 develops practical cooperation among EU states on asylum AMIF Regulation 516/2014 financial support covering asylum, regular migration, return, resettlement *** Temporary Protection Directive 2001/55/EC mass influx of persons seeking protection

6 Visualization of CEAS Lund University / Faculty of Law / PhD Candidate Eleni Karageorgiou 2016/01/22

7 Recent Developments Council Decisions 2015/1523 and 2015/1601 establishing provisional measures for the benefit of Italy and Greece (relocation) EU-Turkey statement 18 March 2016 Regulation 2016/1624 on the European Border and Coast Guard (September 2016), repealing Frontex Regulation 2007/2004 Legislative proposals: Proposal to reform Dublin and Eurodac Regulations (May 2016) Proposal to broaden EASO s mandate (May 2016) Proposal for an Asylum Procedures Regulation (July 2016) Proposal for a Qualification Regulation (July 2016) Proposal for a Reception Conditions Directive recast (July 2016) Proposal for a Union Resettlement Framework (July 2016)

8 CEAS and the current crisis CEAS s structural weaknesses: Reliance on coercion (which incentivizes both states and refugees to frustrate the system) Focus on border management and control rather than protection Externalizing refugee protection to third countries which means that In theory: right to seek asylum in practice: deterrence In theory: right to live an independent life in practice: limbo In theory: collective duty to protect refugees in practice: responsibility shifting instead of responsibility sharing

9 EU asylum law and its application

10 Three core EU Directives on asylum Reception Conditions Directive recast (2013/33/EU) (previous 2003/9/EC) Minimum standards for a full set of benefits granted to people (and family members) who apply for asylum. Asylum Procedures Directive recast (2013/32/EU) (previous 2005/85/EC) Minimum guarantees related to access to the procedure, the right to remain to the territory, examination of applications, conducting interviews, format of decisions, appeals. Qualification Directive recast (2011/95/EU) (previous 2004/83/EC) Common criteria for determining who is eligible for international protection (refugee status and subsidiary protection) what the content of that protection is.

11 Qualification Directive recast (2011/95/EU) Incorporates the Geneva Convention refugee definition (Art. 2d) and the non-refoulement principle (Art. 21) Subsidiary protection for persons not qualifying as refugees but in respect of whom there are substantial grounds for believing that, if returned to their country of origin would face a real risk of suffering from serious harm (2f) Serious harm (Art. 15) 1) Death penalty or execution; or 2) Torture or inhuman or degrading treatment or punishment; or 3) Serious and individual threat to a civilian's life by reason of indiscriminate violence in situations of international or internal AC Lund University / Faculty of Law / PhD Candidate Eleni Karageorgiou 2016/01/19

12 Subsidiary Protection Elgafaji (Netherlands), C-465/07, 17 February QD 2004/83/EC, Art. 15c protection from generalized violence Individual threat? The word "individual" must be understood as covering harm to civilians irrespective of their identity, where the degree of indiscriminate violence characterizing the armed conflict taking place reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to the serious threat. (par. 35)

13 Internal Armed Conflict Aboubacar Diakite (Belgium) C-285/12, 30 January Art. 15c QD What counts as an internal armed conflict? Advocate General expressed the opinion that the term internal armed conflict as referred to in Art.15 c is not to be related to the term non-international armed conflict according to IHL the latter corresponds to the special objectives of IHL and ICL cases that do not fall under the definition of NIAC according to IHL, such as protracted violence cannot be excluded from the definition of internal armed conflict as long as the degree of indiscriminate violence of the armed conflict reaches such a high level that there are substantial grounds for believing that the applicant is in need of protection (paras 71,92-94)

14 Qualification Directive recast (2011/95/EU) (Art. 9) Acts of persecution must: be sufficiently serious by its nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; (Art. 10) definition of a particular social group A PSG might include a group based on a common characteristic of sexual orientation. Lund University / Faculty of Law / PhD Candidate Eleni Karageorgiou 2016/01/19

15 Refugee Definition: Persecution X, Y and Z (Netherlands), Joined Cases C /12, 7 November Persecution on the ground of membership to a particular social group (Art. 10 (1) (d) QD the criminalization of homosexual acts per se does not constitute an act of persecution. However, a term of imprisonment which sanctions homosexual acts and which is actually applied in the country of origin which adopted such legislation must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution... the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin (par. 61, 76)

16 Exclusion (Article 12 QD) Par. 2: A third country national or a stateless person is excluded from being a refugee where there are serious reasons for considering that: (a) he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments; (b) he or she has committed a serious non-political crime outside the country of refuge prior to his or her admission as a refugee, [particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes;] (c) (c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations [as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations].

17 Exclusion (Article 12 QD) B & D (Germany), C-57/09 and C-101/09, 9 November 2010 Main question on exclusion clause: serious non-political crimes The fact that the first applicant was a member and actively supported the armed struggle of an organization which employs terrorist methods, and the second applicant was a combatant and a member of the governing body of PKK, does not automatically and by itself justify exclusion Necessary assessment on a case-by-case basis (par. 99)

18 Thank you for your attention!