Ofpra and asylum in Europe
What is the Common European Asylum System ?
The common European asylum system (CEAS) is a collection of legislative texts setting the norms and common procedures for member States of the European Union in terms of international protection, in order to provide applicants and beneficiaries with a uniform status and an equal degree of protection throughout the entire Union.
The CEAS is made up, in principle, of five major texts, namely three directives and two regulations:
- The revised "qualification" directive, adopted on December 13, 2011, indicates the conditions for granting international protection. The protection granted may be refugee status, in accordance with the Geneva Convention from July 28, 1951 or subsidiary protection, if the person does not fulfill the conditions in order to be granted the status of refugee, but reports fears of being exposed to serious aggression in case they return to their country. The directive also improves access to social rights and integration measures for these protected people.
- The revised "procedures" directive, adopted on June 26, 2013, indicates the given timeframes for member States when providing their responses to applications for protection and attempts to improve their quality. It imposes new procedural guarantees, such as the systematic interview, the presence of a third party alongside the applicant, the possibility – under certain conditions – of being heard by a protection officer and an interpreter of the same sex, or the recording of the interview. The specific needs of the applicants identified as “vulnerable people,” such as unaccompanied minors and victims of acts of torture, for example, are taken into account in order to make it possible for them to explain the reasons for their application under the best conditions.
- The revised "reception" directive, adopted on June 26, 2013, frames the terms of reception for asylum seekers within the European Union. The purpose of which is to guarantee comparable housing, living conditions and social assistance for people awaiting a response to their protection application from one Member State to the next. It provides for the evaluation of the specific needs of vulnerable persons. It strictly regulates the detention of asylum seekers, which should only be taken as a last resort.
- The revised Dublin regulation (Dublin III), adopted on June 26, 2013, improves the application evaluation process for the responsible State and increases guarantees for asylum seekers under the framework of this procedure. It specifically provides for the right to information and systematic interviews. It also indicates the procedural guarantees, evaluation criteria, support/renewed support procedures, appeals, detention conditions as well as how information is exchanged between member States. The “Dublin III” regulation also institutes an early detection system for problems that could disorganize national asylum or reception systems, and makes it possible to intervene in structural causes before the situation worsens into a genuine asylum crisis, like what occurred in Greece.
- The revised Eurodac regulation, adopted on June 26, 2013, regulates the operations of the computer system that compares digital fingerprints, the purpose of which is to help determine which member State is responsible for examining the international protection application (Dublin system). The database includes the fingerprints of asylum seekers who are over the age of 14 as well as people apprehended while illegally crossing an external border. Its revised version grants police and intelligence services of member States as well as Europol access to the database, according to strictly limited circumstances with the sole purpose of preventing and fighting against major crime and terrorism.
In addition to these five major texts are several others, which govern the financial and practical aspects of the CEAS or contain provisions applying, among others, to recipients of international protection :
- The regulation establishing the Asylum, Migration and Integration Fund (AMIF), adopted on July 7, 2021, makes it possible, continuing on with the previous program, to finance the modernization of asylum systems and the improvement of reception and integration conditions for asylum seekers and refugees. It also aims to encourage member States to get involved in reinstallation or relocation programs.
- The regulation establishing the European Union Asylum Agency (EUAA), adopted on December 15, 2021 and entering into effect on January 19, 2022, replaces the EASO, the office in support of interstate cooperation, with an agency equipped with new means and its own skills, specifically that of creating guiding principles for the examination of asylum applications, and supervising the implementation of the CEAS through a monitoring system. The Agency also provides certifying training programs to asylum workers and coordinates operational support programs, including the rollout of national experts, in countries confronted with asylum crises.
- We should also mention the directives regarding :
- Family reunification ;
- The “long-term residence” directive
The directive regarding temporary protection, adopted on July 20, 2011, envisions a common response by the European Union to a massive flux of displaced people who cannot return to their country of origin due to an armed conflict or violence. Granted rapidly, temporary protection is granted for a period of one year, which could be extended to up to two years. For the first time, this directive was set in motion by a decision from the European Union Council in March 2022 in favor of people fleeing the conflict in Ukraine.
History of the CEAS
Asylum is a fundamental right and granting it to those who need protection is an international obligation, recognized by the Geneva Convention, the Charter of fundamental rights and the EU acquis. In the European Union, a space with open borders and the freedom to circulate, member States share the same fundamental values and must have a common approach in order to guarantee both asylum seekers and refugees high standards of protection. The procedures must be both fair and effective as well as make it possible to fight against abuse. They must also be uniform from one State to the next so that, regardless of the State in which the application was submitted, the response provided is similar and the degree of protection is equal.
It is with this in mind that the Union’s States have been committed, as of the summit in Tampere in 1999, to establishing a common European asylum system.
Initially, between 1999 and 2005, the CEAS witnessed the adoption of legislative measures establishing minimal standards in terms of reception, procedures and protection, to which was added the Dublin II and Eurodac regulations, as well as the decision establishing the European Fund for Refugees (FER).
Since the Lisbon Treaty entered into effect (2009) and according to the terms of article 80 from the latter, the policies of the Union related to asylum and immigration are governed by the principle of solidarity and the assurance that all responsibilities are shared equally. This provision highlighted the exigency of the CEAS’s objectives: the minimum standards from the first phase needed to be substituted by common procedures and uniform international protection status.
Consequently, the Union adopted, between 2008 and 2013, new provisions that establish higher common standards and strengthen the cooperation between member States in order to guarantee asylum seekers and recipients of international protection equal treatment throughout the Union’s territory. These are the standards that make up the CEAS and which member States have transposed into their own national legislation between 2013 and 2015.
Reacting to the migratory crisis of 2015 and, mainly, the sinking of migrant boats in the Mediterranean, on May 13, 2015 the Commission published a European Agenda regarding migration, including inter alia a section on strengthening the asylum policy. Under this framework, decisions from the Council from July 20, September 14 and 22, 2015 were adopted, establishing temporary reinstallation and relocation programs for people manifestly needing international protection. A new “Towards a sustainable and equitable common European system” reform was then announced by the Commission in a memo on April 6, 2016. An initial packet of legislative proposals, published on May 4, 2016, aimed to reform the Dublin system, reestablish the Eurodac regulation and replace EASO with the European Union Agency for Asylum while a second packet, published on July 13, 2016, provided for the transformation of the “qualification” and “asylum procedures” directives into directly applicable regulations as well as the reestablishment of the “reception” directive.
Slowed down by the divergent strategies of member States faced with the migratory crisis, negotiations regarding these two series of measures only made slow progress on certain texts before the 2019 elected Commission published a new Pact regarding migration and asylum in September 2020, with five new legislative proposals aiming to reform the Union’s rules in terms of asylum :
- A regulation introducing a filtering procedure at the Union’s external borders in order to rapidly carry out identify, security and vulnerability verifications making it possible to relevantly orient people towards the applicable procedure ;
- A regulation establishing a management framework for asylum and migration, the purpose of which is to replace the Dublin regulation and provide for the establishment of a solidarity mechanism including various methods such as relocation (possible as of the procedure at the border), “sponsorships” for voluntary return procedures as well as initiatives that focus on sharing expertise or reinforcing capabilities ;
- A regulation for managing crises and force majeure situations, which must make it possible to respond to unforeseeable and emergency situations via procedural adjustments and united responses ;
- An amended proposal to the “Eurodac” regulation, designed to keep track of applicants as well as their applications in order to facilitate their monitoring through relocation, voluntary return or secondary movement procedures ;
- An amended proposal to the regulation regarding the common asylum procedure, specifically introducing new procedures at the border (asylum and return to the border procedures).
If only (EU) regulation 2021/2303 from the European Parliament and Council on December 2015 related to the European Union Agency for Asylum and revoking (EU) regulation #439/2010 entered into effect on this day, during the first half of 2022, the French chairmanship of the European Union Council succeeded in adopting the negotiating mandates with the European Parliament regarding the “filtering” and “Eurodac” regulations on June 22, 2022.