Blog post written by Sabrina Müller (PhD candidate at University of Trier and Data Protection officer at Refugee Law Clinic Trier) and Tessa Maria Hillermann (Student assistant at University of Trier and leader of the education programme of the Refugee Law Clinic Trier).
2018 marked the seventh time the Annual Conference on European Asylum Law organised by the ERA Academy of European Law took place in Trier, Germany. Each year, its two main objectives are to firstly provide legal practitioners with an update on the ongoing reform of the Common European Asylum System (CEAS) in terms of legislative developments. In addition to this, it tackles recent developments in the European case law.
In 2018, speakers from different EU and diverse national institutions provided various approaches and insights on a CEAS. The abovementioned two main objectives also found themselves in the structure of this year’s conference: While the first day dealt with the recent situation of asylum law in theory with concern to legislation (state of play, legal proposals), the second day was characterised by the corresponding latest case law.
The key topics revoled around the reform of the CEAS, including especially new institutional developments in European asylum policy, among these are the regulation on the establishment of the European Dactyloscopy (EURODAC) and questions about how to harmonise the reception conditions or the corresponding protection standards, the way towards common standards in procedural guarantees for asylum-seekers and contributions of the European Courts to shaping the CEAS. During the conference two different approaches basing on different principles ran like a common thread through many speeches and the following discussions: solidarity vs. responsibility and fundamental rights-protection vs. migration management-policy.
This report mainly aims at commenting these two approaches. Furthermore, it scrutinises the EU’s current asylum policy of a would-be strengthening partnerships with third countries, especially with Turkey. Finally, it dares to look ahead and face future challenges to a CEAS including its factual and legal basis.
Solidarity vs. responsibility: “Nothing is agreed until everything is agreed”
The first panel had as its theme: Update on reform of the CEAS – towards a more effective EU migration policy?. Already in the very first presentation, the contrast between the two main aspects, namely the protection of fundamental rights on the one hand and the efficiency of a set of measures on the other hand, became visible.
The first speaker Jaana Temmler (Policy Officer, DG Home, European Commission) covered the Commission’s focus on the state of facts in her presentation Evolution of the EU asylum and migration policy – the perspectives of the European Commission and the Council of the European Union. She pointed out the EU’s harmonisation goals: a sustainable, fair and more efficient asylum system balancing solidarity and stable responsibility. In regarding the last two points she exposed the two essential and interlinked elements of the Commission‘s proposal of the Dublin reform (May 2016): Stable responsibility and solidarity through allocation of applicants to curb an unequal distribution of applicants among Member States and the high secondary movements towards Member States of choice. In line with this goal Sonja Boelaert (Senior Legal Adviser, Council of the European Union, Brussels) introduced the Council’s slightly different approach by setting up the mantra: Nothing is agreed until everything is agreed. In her presentation Evolution of the EU asylum and migration policy – some perspectives of the Council/European Council she envisaged the strategic changes due to six-monthly changing presidencies of the Council as the sticking points ensuring a political consensus on the CEAS reform.
Both addressed the weaknesses of the current asylum system correctly: The Dublin System is not designed as a system of solidarity, at the same time the principle of solidarity laid down in Art. 80 of the Treaty on the Functioning of the European Union (TEUF) statutes no positive legal obligation for solidary instrumentations, but rather requires an existing legal connecting factor. A Dublin reform which enshrines legal instruments explicitly based on the idea of solidarity is inevitable.
Despite all the justified criticism to the instability arising from the changing presidencies, abolishing the rotation of the position would reduce the participation possibilities of some more critical smaller Member States and thus enlarge the debate about the EU’s gap of democracy. Moreover, this step would cut across the idea of responsibility, which requires a responsibility of each Member State, also in the Council. Especially with regards to the Bulgarian and Austrian Presidency in 2018, the changing Presidencies were a chance rather than an obstacle to come into political and legal discussions which consider all positions on the solidarity conflict.
The considerations which the abovementioned Jaana Temmler gave in her second presentation New institutional developments in European asylum policy – from EASO to the EU Agency for Asylum showed that the EU Agency for Asylum (EUAA) is a helpful acteur to remedy the system’s shortcomings and implementing common standards for a CEAS. This happens namely by delivering operational and technical assistance to Member States, practical cooperation and information exchange, by monitoring through recommendations and by assisting Member States when their asylum and reception systems are under disproportionate pressure. Apart from that it can be said that the quality of legal aid provided by advocates and NGOs could benefit from these information mechanisms only under the condition that their access to materials will be legally ensured.
The objective of the third panel Contribution of the European courts to shaping the CEAS was to examine the role of the two European courts in the development of the fundamental rights of asylum seekers. Initially, Thomas Straub (Registry Lawyer, European Court of Human Rights, Strasbourg) gave his presentation about Ensuring judicial protection of asylum-seekers‘ rights by the ECtHR and described the perspective of the European Court of Human Rights (ECtHR). He paid special attention to the immigration detention of asylum seekers and the thereof restriction of freedom of movement arising from of Art. 5 of the European Convention on Human Rights (ECHR) and Art. 6 of the EU Charter of Fundamental Rights (CFREU). His main criticism was reserved for the so-called hotspot facilities: Although in some cases, the authorities might have been acting in good faith, the situation in these centres is below basic standards, especially for those travelling with children as well as some detention cases where there were extremely poor conditions, e.g. no access to sanitary facilities, no food or drinks provided.
It is clear that these facilities are incompatible with human rights standards such as the right to human dignity and the access to legal assistance. All the more important are the correctives of individual cases by the European Court of Human Rights (ECtH) and the Court of Justice of the European Union (CJEU). However, it also needs to be mentioned that the case-by-case-assessment of courts cannot replace a permanent legal solution – which indeed the current Dublin system cannot offer – based on a political consensus.
Fundamental-rights-protection vs. migration-management-policy: “Please do not leave the judges holding the baby!”
Anna Moscibroda (Policy Officer, DG Just, European Commission, Brussels) reported on Personal data protection in EURODAC – the proposal to recast the EURODAC Regulation and thereby revealed the conflict between fundamental rights and the necessity of migration management on the example of EURODAC. On the one hand, effective migration-management systems such as Visa Information System, Schengen Information System and EURODAC require data of migrants. On the other hand, refugees during administrative proceedings are vulnerable groups and therefore in special need of (data) protection. Thus Anna Moscibroda sees data protection as a chance: It could be used as a tool reinforcing other fundamental rights for vulnerable groups.
This may be correct concerning fundamental rights due to a fair process but it is doubtful regarding substantive fundamental rights. If anything, they can lead to a more sensitive perspective, but in doing so they merely have an indirect, awareness raising effect.
In the second panel with the topic Striving for common standards in EU Asylum policy Fabiane Baxewanos (Legal Officer, UNCHR, Brussels) explained possible answers on The proposed qualification regulation – Harmonisation at what price? and thereby set another focus on fundamental rights: The UNHCR welcomes the guarantees when assessing IPA checks (Pre-accession Assistance) and the equal treatment with nationals regarding employment-related rights and rights of beneficiaries, which are provided in the proposed qualification regulation. On the other hand, one of the main concerns affected the difference between protection statuses among the Member States, the linking social assistance to integration and the sanctions for onward movement. In particular she noted that any termination of status must be in strict compliance with the law and the concepts such as IPA and sur place refugees must be consistent with international refugee law.
Of course a calculated legal circumvention of EU refugee law must be prevented and alternatively sanctioned. But the sticking point is rather the implementation of existing law than the legal adaptation of EU law by Member States. This lack of enforcement should be more taken into account when discussing the harmonisation of protection standards. But fully in line with UNHCR, which supports the goal of a harmonised protection, it can be concluded that downward harmonisation should be avoided.
Any such downward reform process is also a fear of Flip Schüller (Immigration and Asylum Lawyer, Prakken d’Oliveira, Amsterdam). With the words “The current situation is at a deadlock” he introduced his considerations on Asylum procedure – towards common standards in procedural guarantees for asylum seekers. As major issue he characterised the question of how to achieve the aim of meeting the standards that Luxemburg (CJEU) has set up in the past. Although he viewed binding common standards as necessary, he remarked that in cases of higher standards in national laws than in the EU regulations, national rules will have to be lowered. With that said he also revealed the very sensitive situation of LGBTI persons. On the other hand, he was also able to stress at least some positive developments: information rights were strengthened as well as the right to free legal assistance including representation during all stages of the asylum procedure. He expressed legitimate concerns about the development of more and more procedural criteria, which leads away from addressing the very individual case. Nevertheless it has to be remarked that procedural criteria are both necessary to ensure an effective migration management, and to guarantee equal rights of applicants due to process. Flip Schüller also fears that politics will be overruling the jurisdiction since the only way for lawyers to be taken seriously is comprehensible and referred to this phenomenon as “Judicial passivism“. His credo: Stop making new rules, just apply the ones already existing.
This comes full circle with the sticking point brought up above: Fundamental-rights-protection firstly requires an implementation of existing protection rules. All in line with this credo Eleanor Sharpston (Advocate General, Court of Justice of the European Union, Luxemburg) in her presentation “Left holding the baby“ – recent CJEU case law from the refugee crisis drafted an urgent request towards both the participants of the conference themselves and the places they stand and work for: “Please do not leave the judges holding the baby!”.
Strengthening partnerships with third countries: “Cooperation on migration management”
The fourth and last panel of the conference was about the EU’s wish to strengthen partnerships with third countries. The CEAS embodies the tensions between the two axes of solidarity vs. responsibility and migration management vs. fundamental-rights-perspective. However, – working together with other countries on this system as its legal and practical basis – still appears to be the most important and difficult challenge to the EU.
Especially the EU partnership with Turkey raises many questions, among which the speakers Ruud van Enk (Senior Expert, DG Near, European Commission, Brussels) and Christina Zarogianni (Lawyer and Asylum Specialist, Athens) as well as many other participants of the conference saw its legal quality as the most crucial one. First of all, the right terminology had to be made up. Concerning this you might remark that while the right words are surely substantial to describe a situation, the content should have a much deeper impact. In their eyes, the come-together between the EU and Turkey should most correctly be characterised as a statement, not as an arrangement, a deal or a resettlement in a one to one principle. Meanwhile, the CJEU describes and treats it as a non-EU-agreement, but as a European agreement between the Member States of the EU and Turkey (Art. 263 TFEU). As a consequence, the Luxemburg Court lacks jurisdiction to review its legitimacy. In contrast, the European Commission sees in it a pure political commitment rather than generating any legally binding effect. However, in the Member States themselves the application is only optional.
You might ask yourself if the speakers were right to characterise the so-called come-together as only political and hence legally non-binding. Trying to dare a rather critical view you might question if the Turkish government will not be granted numerous actually and originally unwanted advantages by having many national partners on terms of public international law instead of one “big” EU.
Besides the partnership with Turkey, the EU and its Member States also hold agreements with other countries. Anja Palm (Junior Researcher, Istituto Affari Internazionali, Roma) gave a presentation on External migration management in the Sahel. She described the Sahel as a centrally located area with increasing life expectancy, a high birth rate and mostly young people. This fact which at a first view might be seen as a very positive change in northern African societies leads to a growing unemployment rate and subsequently to a strong internal and external migration. These social developments caused a shift in the migration policy and its different sectors. Unfortunately, Italy as the European country which most of the North African migrants flee to, is rather in a reaction-mode instead of an action-mode. This fact will probably not significantly change as long as Italy maintains a right-wing populist government.
Italy’s political vision however has a dual focus: security and solidarity. In order to fulfill this vision, it has set up certain binational agreements with North-African countries, especially with Libya and Niger as the two main transit countries to get to Europe. But can a merely political vision replace actual measures? And will agreements such as those which have been made under a purely political vision be able to hold for a very long time? The referent favoured Italy as the EU-Member State realising both short-term and long-term migration policy programs, but most of all using a way to diplomatically pressure the EU. Unfortunately she did not at all answer how to achieve this goal.
Both the media and the experts in politics and law keep on talking about EU-deals with third countries. However, while doing so they do not mention that these deals are barely investigated in a legal manner. As noted, especially the deal with Turkey is questionable under terms of public international law, questions concerning the competence of the CJEU and refugee law (namely the principle of non-refoulement). The danger that this fact evokes has to be foregrounded among all concerned parties and must lead to new steps in changing this situation.
Outlook: “The broader picture”
Far away from all the earlier discussed ways to enhance a common European Asylum Law, the abovementioned Anja Palm also drew the participants’ attention to a growing challenge that the EU and its Member States as well as the third countries will have to face in the near future. Her work particularly demonstrates the growing awareness of an upcoming new type of refugees, who have to leave their home countries not because of war or individual persecution but due to climate change.
This view must by no means be written off as a pessimistic look in the crystal ball, but as an absolutely necessary and realistic future scenario, which might make a pure mockery of the very detailed and unquestionably important discussion on a common European Asylum law since in some years or decades a very different legal situation may have to be established in order to face the challenges this new type of refugees can and probably also will pose.
The referent was therefore absolutely right to conclude by drawing the broader picture and by raising the essential question whether migration in the EU Member States and the EU itself has to be seen and to be dealt with as the foreign policy priority or as a comprehensive foreign policy just including a migration component such as general social development and trade. The only way to answer this question is by declaring migration to not be the only but one of several of the most important political aims in all EU Member States. Within this answer, it cannot be migration-management-policy vs. fundamental-rights-protection but a well-chosen compromise between these two approaches in every single individual case.
Besides this, her wish towards the EU to constantly provide financial aid has to be heard even louder and to definitely be supported. Quite apart from the very important legal and ideological consent that can be found in the CEAS and the ongoing reform proposals to improve its quality – also in strengthening partnerships with third countries –, the practical challenges of how to achieve its goals are not to be underestimated.
Summing up, the Annual Conference on European Asylum Law 2018 dealt with the recent developments in European legislation and case law and provided insights around the current state of play. It pointed out different prospects of the future challenges of European asylum policy. Nevertheless, some important questions remain unanswered, such as the future drafting of the Dublin system, the amount of harmonisation and reforms as well as the legal quality of partnerships with third parties – all of them lying within the stress ratio between the two mentioned aspects of solidarity vs. responsibility and of fundamental rights-protection vs. migration management-policy.
Last but not least it has to be seen that all the efforts which are currently being made might in some years or decades lapse since climate refugees will gradually become reality in the future EU and its Common Asylum Law System.
Bast, Jürgen, Scharade im kontrollfreien Raum: Hat die EU gar keinen Türkei-Deal geschlossen?, VerfBlog, 2017/3/03, https://verfassungsblog.de/scharade-im-kontrollfreien-raum-hat-die-eu-gar-keinen-tuerkei-deal-geschlossen/.
Idriz, Narin, Taking the EU-Turkey Deal to Court?, VerfBlog, 2017/12/20, https://verfassungsblog.de/taking-the-eu-turkey-deal-to-court/.
Markard, Nora/Heuser, Helene, „Hotspots“ an den EU-Außengrenzen: Menschen- und europarechtswidrige Internierungslager, ZAR 2016, p. 165.
Schwerdtfeger, Angela, Der Grundsatz der Solidarität im europäischen Asylrecht – Ein Stabilisator für Unionsrechtsakte, DÖV 2018, p. 725.
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