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Developing support for wavering asylum systems: convincing mechanisms?

By Yves Pascouau

Published on 26/06/2012

National asylum systems may face difficulties and lead to violations of EU and human rights rules. Hence, support mechanisms have been established in order to avoid such critical situations. In its commentary, Yves Pascouau addresses three types of mechanisms and questions whether they are able to help wavering asylum systems. While some concrete actions are addressed, he also points out some lacking ones.

The Common European Asylum System (hereinafter CEAS), scheduled for the end of 2012, aims to establish a common asylum procedure and a uniform status for those who are granted asylum that is valid throughout the Union. Despite intense efforts deployed to reach this goal, the CEAS will most likely not be fully in place in due time. Legislative negotiations on the second set of EU rules are still on-going, and may not be finalised in December, and there are still large differences between the Member States regarding their asylum systems as well as the rates of recognition of international protection.

Moreover, the CEAS currently in place shows that its weaknesses do not only derive from a lengthy EU legislative process but also from problems occurring in the Member States. Some of them encounter difficulties in properly implementing rules, and therefore in providing for appropriate protection to asylum seekers. Mechanisms have since been implemented to help staggering asylum systems. The question is whether these mechanisms are sufficient to cope with situations where Member States are failing to correctly implement EU rules and human rights standards.

Greece: worst case scenario and actions adopted for support

Many reports over a long period of time have underlined the difficult situation of the Greek asylum system and the appalling conditions that asylum seekers have been facing. However, Member States have not been deterred by having to transfer asylum seekers to Greece under "Dublin" rules. These rules have been established in order to avoid so-called “asylum shopping” and define a list of criteria which enable to determine which Member State is responsible for examining asylum applications.

Transfers of asylum seekers to Greece were heavily contested due to their incompatibility with EU and human rights rules. The situation was finally clarified in 2011. In January the European Court of Human Rights condemned Belgium for the violation of article 3 of the European Convention of Human Rights for transferring asylum seekers in Greece. In December, the European Court of Justice took the same stand and underlined the fact that the Greek asylum system was under "systemic deficiencies".

These decisions made it even more important to speed up the implementation of an ambitious action plan to reform Greece’s asylum system, which had been adopted in September 2010. The action plan which would receive the support of the EU and Member States aims to address the needs, and help Greece to cope with EU and human rights standards. In essence, the action plan comprises partly of a reform of the asylum procedure, which includes the creation of a new asylum service, and partly of reinforcement of Greece’s capacities for receiving asylum seekers.

While extensive practical and financial (up to € 309 million so far) assistance has been granted by the EU, results achieved thus far are not satisfactory. A progress report presented by Commissioner Cecilia Malmström during the March 2012 Justice and Home affairs Council underlines several issues of concern. For instance, the new asylum service has only managed to recruit 11 persons out of 700 planned; persons applying for asylum are systematically detained; asylum claims are registered for a few hours every Saturday; decent reception conditions are not ensured in the Evros region; recognition rates of international protection remain extremely low (ranging from 1% to 6% including nationalities from war regions).

Despite some progress, there is still a long way to go before achieving excepted goals in particular on the side of the Greek authorities. There are however two missing elements, which could provide for solidarity from the Commission and the Member States side. As regards the Commission, it has regularly asked the Greek authorities to revise lengthy financial procedures to facilitate the implementation of projects co-funded under EU funds. However, one could consider that in such an extreme situation the Commission could exceptionally modify its own rules and make funding opportunities more easily available. As regards Member States, it is worth underlining that the progress report does not address the question of relocation of refugees. This could be one way to provide for sound support to an overburdened asylum system.

Emergency situations: the EU toolbox for EU-wide solidarity

Alongside Greek structural problems, the “Arab spring” has raised the idea that some national asylum systems may face particular pressure and that solidarity should then be provided. In this view, the Council has adopted conclusions in March 2012 “on a common framework for genuine and practical solidarity towards Member States facing particular pressures on their asylum systems, including through mixed migration flows”.

Essentially, the conclusions constitute a toolbox for EU-wide solidarity where Member States encounter problems in their asylum systems due to particular pressures. As the name suggests, solidarity actions are practical and should primarily rely on operational cooperation through enhanced involvement of the European Asylum Support Office (EASO) and the FRONTEX Agency as well as on funding.

Other forms of solidarity are addressed but in a longer term perspective. This concerns “relocation” which could be examined, “joint processing of asylum claims” which is being explored, and the implementation of the temporary Protection Directive which should be considered. The external dimension of the policy is also addressed through return procedures and cooperation with third countries.

While the Council conclusions emphasise the need to further enhance solidarity on the basis of existing experiences, it is worth noting that no reference is made to article 78, paragraph 3, of the TFEU. This provision states that “in the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament”.

It is striking to underline that a Treaty provision dealing specifically with “emergency situations” and providing for “provisional measures” is not quoted as a basis for action, at least for exceptional funding or operational action. From an optimistic point of view, the Council may consider current mechanisms sufficient to cope with such situations. If one takes a pessimistic view, the Council does not have any political will to implement this provision, or even the knowledge of its potential. In any case, it would be valuable to have some views about the potential of article 78, paragraph 3 in times where the word “solidarity” is on everyone’s lips.

Recurrent problems in the asylum systems

A third and final issue concerns the case where one Member State, despite particular pressure, faces regular problems in its asylum procedure, i.e. it does not comply with EU rules and human rights standards. This could be the case where asylum seekers encounter poor reception conditions or where transfer under “Dublin” rules may put some persons at risk. Several mechanisms may help in this case.

Regarding the transfer of asylum seekers under Dublin rules, two mechanisms exist. The first one derives from the European Courts’ jurisprudences which prohibit Member States from transferring asylum seekers to another state where they are at risk of suffering from human rights violations. The second, due to be adopted soon, is the “early warning mechanism”. It provides that when a problem in the functioning of a national asylum system jeopardises the application of the Dublin Regulation, corrective mechanisms must be put in place. The objective is to avoid risks of dysfunction rather than to deal with the consequences and possible sanctions from European courts.

Alongside Dublin issues, the European Commission, as the ‘guardian of the Treaties’, has the duty to monitor the implementation of EU rules in the Member States. Where it identifies problems in implementing EU and human rights rules, it has the power to introduce infringement procedures. However, for the time being, the Commission has not been very active in this respect. As a consequence, the European Court of Human Rights, which is a Court “outside” of the scope of EU Treaties, has sanctioned two Member States for their bad implementation of EU and human rights rules. A more active role of the Commission would avoid such situations.

While different mechanisms are in place, support to wavering asylum systems could be even more effective with the further use of article 78, paragraph 3, relocation schemes and infringement procedures. This could foster EU-wide solidarity and enhance Member States’ capacity to provide appropriate protection where human lives are at risk.

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