Abstract
The contributions to this book highlight how creation of the Common European Asylum System raises controversial and difficult issues. The Member States of the European Union will need to try to find common ground on this matter where, although they are all bound by the same international norms, their views differ considerably on how protection is to be afforded to asylum seekers and refugees. In this introductory chapter the aim is to present the main issues arising from the creation of the common asylum policy. Specific issues are dealt separately in chapters written by the specialists who have contributed to this book.
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Notes
- 1.
Resolution 2198 (XXI) adopted by the United Nations General Assembly, available from http://www.unhcr.org/3b66c2aa10.html (accessed 14 August 2011). Altogether 144 States are parties to the Convention, and the Protocol. 141 States are parties to the both, three States being only parties to the Convention or to the Protocol separately, source: http://www.unhcr.org/3b73b0d63.html (accessed 14 September 2011).
- 2.
Article A(2) of the Convention.
- 3.
For 2010 statistics on the EU Member States, see for example http://epp.eurostat.ec.europa.eu/cache/ITY_OFFPUB/KS-QA-10-042/EN/KS-QA-10-042-EN.PDF (accessed 14 August 2011).
- 4.
The UNCHR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, http://www.unhcr.org/publ/PUBL/3d58e13b4.pdf (accessed 14 August 2011). The Handbook was first adopted in 1979 and re-edited in 1992. See Chap. 8, Ascoli, for further discussion.
- 5.
Under Article 3 prohibition of torture and inhumane treatment, the ECtHR case law on asylum is raised for discussion in many papers in this book. See, for instance, Chap. 3, Bruin, Chap. 6, O’Dowd and Chap. 10, Vedsted-Hansen for different aspects of the ECHR. See also below discussion on the recent ECtHR case law on the Dublin system.
- 6.
The Dublin Convention, Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities, signed in 1990, OJ 1997/C254/pp. 1–12.
- 7.
Council Regulation (EC) No 343/2003 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, OJ 2007/L50/pp. 1–10.
- 8.
The Dublin system is also applied in Norway, Iceland and Switzerland.
- 9.
See Dublin II Regulation, Summaries of EU Legislation, http://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l33153_en.htm (accessed 14 August 2011).
- 10.
See also Chap. 7, Raitio.
- 11.
European Council, “The Stockholm Programme—An Open and Secure Europe Serving and Protecting Citizens”, OJ 2010/C115/pp. 1–38.
- 12.
Article 3(1) and Article 17 of the Regulation.
- 13.
See Articles 17 and 18 of the Regulation.
- 14.
Article 3(2) of the Regulation.
- 15.
Article 15 of the Regulation.
- 16.
R v. Secretary of State for the Home Department, ex parte Adan and R v. Secretary of State for the Home Department ex parte Aitseguer, House of Lords, [2001] 2 WLR 143–169, per Lord Slynn of Hadley, at pp. 144–145, “It seems to me that the Secretary of State may not send back an applicant if the Secretary of State considers that the other state’s interpretation would lead to an individual being sent back by that state to a state where he has established a fear of persecution which the Secretary of State finds to be covered by the Convention.”
- 17.
T.I v. the UK, European Court of Human Rights, Application No. 43844/98, p. 15, “The Court finds that the removal in this case to an intermediary country, which is also a Contracting State, does not affect the responsibility of the United Kingdom to ensure that the applicant is not, as a result of its decision expel, exposed to treatment contrary to Article 3 of the Convention. Nor can the United Kingdom rely automatically in that context on the arrangements made in the Dublin Convention concerning the attribution of responsibility between European countries for deciding asylum claims.” See also Chap. 3 by Bruin, who discusses these cases.
- 18.
See Chap. 7, Raitio.
- 19.
See Chap. 10, Vedsted-Hansen.
- 20.
Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status, OJ 2005/L326/p. 13 ff.
- 21.
Council Directive 2003/9 laying down minimum standards for the reception of asylum seekers, OJ 2003/L31/p. 18 ff.
- 22.
Council Directive 2004/83/EC 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, OJ 2004/L304/p. 12 ff.
- 23.
See Chap. 10.
- 24.
See Chap. 4.
- 25.
See Chap. 10, Vedsted-Hansen and Chap. 4, Da Lomba.
- 26.
Article 1(c) defines a refugee as “a 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 the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it.”
- 27.
Article 2(c) and Article 15(c) of the Qualification Directive.
- 28.
Article 267 TFEU now grants a normal jurisdiction for the Court of Justice to give preliminary rulings. Previously, under the EC Treaty, the right to ask preliminary rulings was limited to the highest national courts, see Article 68 EC Treaty.
- 29.
Case C-465/07 Meki Elgafaji, Noor Elgafaji v Staatssecretaris van Justitie [2009] ECR I-00921. On Elgafaji, see Chap. 7, Raitio, and Chap. 10, Vedsted-Hansen.
- 30.
Joined Cases C-57/09 and C-101/09 Bundesrepublik Deutchland v B, judgment of 9 November 2010.
- 31.
See Articles 12(2)(b) and (c) of the Qualification Directive. The Court of Justice answered here that the person is not necessarily excluded from the protection on the basis that the person is or has been a member of an organisation listed on Common Foreign and Security Policy (Common Position 2001/931/CFSP) lists on combating terrorism. There needs to be serious reasons for the person to have committed such acts and individual responsibility must be attributed to the person concerned.
- 32.
See Chap. 10, Vedsted-Hansen.
- 33.
Under Article 258 TFEU.
- 34.
See for example, UNCHR Discussion Paper, “The Dublin II Regulation”, April 2006, http://www.unhcr.org/refworld/docid/4445fe344.html (accessed 14 August 2011); ECRE, “Report on Application of Dublin II Regulation in Europe”, March 2006, available from http://www.ecre.org/topics/areas-of-work/protection-in-europe/135.html (accessed 14 August 2011). From academic writers, see for example Brandl, “Distribution of Asylum Seekers in Europe? Dublin II Regulation Determining the Responsibility for Examining an Asylum Application”, in de Sousa and De Bruyncker, The Emergence of European Asylum Policy, (2003) Bruylant, Hurwich, “The 1990 Dublin Convention: A Comprehensive Assessment”, (1999) 11 IJRL, pp. 648–677, Marx, “Adjusting Dublin Convention: New Approaches to Member State Responsibility for Asylum Applications”, (2001) 3(1) EJML, pp. 7–21, and Noll, “Formalism and Empiricism: Some Reflections on the Dublin Convention on the Occasion of Recent European Law”, (2001) 70 Journal of International Law, pp. 161–182.
- 35.
European Court of Human Rights, Fact Sheet, “The Dublin Cases”, August 2010, http://www.echr.coe.int/NR/rdonlyres/26C5B519-9186-47C1-AB9B-F16299924AE4/0/FICHES_Dublin_Cases_EN.pdf (accessed 14 August 2011).
- 36.
See for example ECRE, Letter to Jacques Barrot, Vice-President of the European Commission, “RE: The treatment of asylum seeker in Greece and reform of the Dublin Regulation”, 3 April 2008, available from http://www.statewatch.org/news/2008/apr/eu-greece-ecre-dublin-letter.pdf (accessed 14 August 2011), and more recently, ECRE, Letter to the European Council, “Stop sending asylum seekers to Greece”, 29 October 2010, press release available from http:irishrefugeecouncil.ie/media/ECRE-Stop-Transfers-Greece-press-release.pdf (accessed 14 August 2011); or UNCHR, “Observations of Greece as a country of asylum”, December 2009, http://www.unhcr.org/refworld/docid/4b4b3fc82.html (accessed 14 August 2011).
- 37.
See for example, ECRE Information Note, ECRE Interim Measures (rule 39) to stop Dublin transfers according to which transfers to Greece, Malta and Italy have been halted by the ECtHR, available from http://cmr.jur.ru.nl/cmr/docs/ecre.rule39.pdf (accessed 14 August 2011).
- 38.
Case of M.S.S. versus Belgium and Greece, Application No. 30696/09, Judgment of 21 January 2011, see also Press Release issued by the Registrar of the Court, No. 043, 21 January 2011, “Belgian authorities should not have expelled asylum seeker to Greece”.
- 39.
Proposed new measures are: COM(2008)820 final on Dublin Regulation, COM (2008) 815final on minimum conditions for reception conditions, COM(2009)554 final on minimum standards on procedures in Member States for granting and withdrawing international protection, COM(2009)551final on minimum standards on qualification and status of third country nationals or stateless persons as beneficiaries of protection and the content of the protection granted.
- 40.
See Chap. 7, Raitio, for the recast Dublin Regulation, Chap. 10, Vedsted-Hansen, for recast minimum procedures and qualification Directive proposals, and Chap. 9, Vandvik, for reception conditions reform.
- 41.
Article 78(2) TFEU.
- 42.
Previously Article 67(4) EC Treaty allowed qualified majority voting with the involvement of the European Parliament on when the Council had previously adopted by unanimity Community legislation defining the common rules and basic principles in asylum.
- 43.
Articles 18 and 19 of the Charter.
- 44.
See Chap. 7, Raitio, and Chap. 9, Vandvik.
- 45.
According to the IND statistics presented at the conference, Italy does not have that many asylum applicants. However, there are according to the statistics many irregular immigrants arriving through Italy. The problem could be that Italy is not allowing these persons the entry to the asylum procedures. Some statistical confirmation for this can be seen for example from UNHCR Report, Asylum Levels and Trends in Industrialised Countries 2009, http://www.unhcr.org/4ba7341a9.html (accessed 14 August 2011), according to which there has been 42% decrease in asylum applications in Italy, p. 5. See further on this Chap. 8, Ascoli.
- 46.
European Parliament, State of European asylum system, after the recent decision of the European Court of Human Rights, 75518, 15 February 2011, http://www.europarl.europa.eu/en/media-professionals/content/20110215SHL18429/html/State-of-European-asylum-system-after-the-recent-decision-of-the-European-Court-of-Human-Rights-75518 (accessed 14 August 2011).
- 47.
Decision 573/2007/EC of the European Parliament and of the Council of 23 May 2007 establishing the European Refugee Fund for the period of 2008–2013 as part of the General Programme “Solidarity and Management of Migration Flows” and repealing Council Decision 2004/904/EC, OJ 2007/L144/pp. 1–21.
- 48.
See European Commission, The European Refugee Fund III, http://ec.europa.eu/home-affairs/funding/refugee/funding_refugee_en.htm (accessed 14 August 2011).
- 49.
For the period of 2008–2013 the Fund has 628 million Euro and 566 million Euro will be distributed to the Member States. 62 million Euro is reserved for other Union actions, such as supporting practical cooperation between Member States, ibid.
- 50.
See further Chap. 5, Hövell.
- 51.
Regulation (EU) No 439/2010 of the European Parliament and of the Council of 19 May 2010 establishing a European Asylum Support Office, OJ 2010/L132/pp. 11–28.
- 52.
Article 2 of the Regulation.
- 53.
Article 3 of the Regulation.
- 54.
Article 4 of the Regulation.
- 55.
Recital (10) and Article 50 of the Regulation.
- 56.
Article 12(2) of the Regulation.
- 57.
Articles 25(4) and 27 of the Regulation, as a non-voting member. The representative can also sit in the Executive Committee, only without the right to vote, Article 29(2) of the Regulation and sit in the Consultative Forum, Article 51 of the Regulation.
- 58.
Article 9 of the Regulation.
- 59.
Article 10 of the Regulation.
- 60.
See also Inex, Interview with Director of FRONTEX, Mr. Laitinen, 12 May 2010, http://migrantsatsea.files.wordpress.com/2010/11/inex-laitinen-interview-12may20101.pdf (accessed 14 August 2011).
- 61.
http://www.frontex.europa.eu/ (accessed 14 August 2011) for information on FRONTEX. See further Chap. 6, O’Dowd, on the role of FRONTEX.
- 62.
Article 77 TFEU.
- 63.
Article 18 of the Charter: “The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention…”.
- 64.
In Article 78 TFEU we find provisions for developing uniform status on asylum and subsidiary protection for nationals of third countries, common system of temporary protection for displaced persons in the event of a massive inflow, common procedures for granting or withdrawing of asylum or subsidiary protection status.
- 65.
See especially Article 3 which states that the “Directive shall apply to all applications made in the territory…”.
- 66.
The only mention of an asylum application is made in Article 1(g) of the Directive which states that “’application for international protection’ means a request made by a third country national or a stateless person for protection from a Member State, who can be understood to seek refugee status or subsidiary protection status, and who does not explicitly request another kind of protection, outside the scope of this Directive, that can be applied for separately”.
- 67.
Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, OJ 2008/L348/pp. 98–107.
- 68.
Article 1 of the Directive.
- 69.
Recital (9) of the Directive: “a third country national who have applied for asylum in a Member State should not be regarded as staying illegally on the territory of that Member State until a negative decision on the application, or a decision ending his or her right of stay as asylum seeker has entered into force”.
- 70.
See Chap. 8, Ascoli, and Chap. 3, Bruin.
- 71.
See Submission by the Office of the UNCHR in the Case of Hirsi and Others versus Italy (Application no. 27765/09).
- 72.
Commission Green Paper on the Future of Common European Asylum System, COM(2007)301 final.
- 73.
Discussed also by O’Dowd in Chap. 6.
- 74.
Supra n. 11, Sect. 1.2.
- 75.
Supra n. 11, Sect. 1.2, p. 33.
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Goudappel, F.A., Raulus, H.S. (2011). Introduction. In: Goudappel, F., Raulus, H. (eds) The Future of Asylum in the European Union. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-90-6704-802-6_1
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