Explainer: how the EU proposes to change its asylum laws

Migrants stuck at the Greece-Macedonia border. Armando Babani/EPA

The European Union’s response to the migration crisis that began in 2015 has had two distinct phases. While there was initial support for humanitarian solutions to the increasing number of people claiming asylum, hope for a primarily humanitarian approach has long since evaporated.

The closure of borders to those in transit through Europe has stranded many migrants in Greece, despite continuing problems with its asylum system.

EU policy is now to return asylum applicants to Turkey, even though the country has not extended the Refugee Convention to non-Europeans, and there are doubts about its safety for those who need protection.

On April 6, a Communication from the European Commission set out a series of possible policies to reform the EU’s migration framework. In it, the Commission recognises that the crisis has exposed “significant structural weaknesses and shortcomings” in the EU’s asylum arrangements.

The measures it outlines emphasise greater centralisation and order in the asylum system. But they fail to reflect the legitimate aspiration of those seeking protection to reach countries they believe will offer them meaningful opportunities.

A better way to achieve order, while respecting applicants’ understanding of their situation, is surely to grant an EU-wide right of residence to those recognised as in need of protection. Yet that idea forms no part of the Commission’s current agenda.

Responsibility for asylum applications

The most significant proposals in the Communication concern the allocation of responsibility for asylum applicants. The current rules are contained in the “Dublin III” Regulation of 2013 and establish a presumption that, if a person enters the EU in an irregular manner, the state they enter has responsibility for any subsequent asylum application.

The Dublin rules are notoriously unfair on border states in southern and eastern Europe. They are equally disliked by applicants, who may end up allocated to a border state they have no interest in living in. The combined refusal of border states and migrants to accept the logic of the Dublin Regulation has been central to the migration crisis over the past year.

The preferred response at the EU level has been to supplement the Dublin Regulation with provision for relocation of asylum applicants among EU and associated states. The main outcome to date was two Council decisions in September 2015, which provided a temporary scheme for the relocation of up to 160,000 asylum applicants from Greece, Italy and elsewhere, over two years.

Relocation, relocation

But the relocation principle has faced significant objections from some member states. Four states voted against the second Council decision in September, because of its provision for mandatory quotas. Two of those (Hungary and the Slovak Republic) have gone on to challenge its legality before the Court of Justice.

Things are little better on the ground. A European Commission report in mid-March showed that only 937 persons had actually been relocated (569 from Greece, 368 from Italy). The Commission’s own assessment is that the number of formal pledges of relocation places is “clearly insufficient” to meet states’ obligations under the scheme. These low numbers probably also reflect the unattractiveness of relocation to asylum applicants, who are obliged to apply in the border state, and then face being dispersed around Europe.

Despite these difficulties, the Commission has now proposed two options for a relocation scheme. One would see the complete replacement of the Dublin Regulation with central allocation of asylum applications. The other would be a “corrective” mechanism – similar to a proposal it made in September 2015 – with the Dublin rules replaced by relocation around Europe based on a quota system in crisis situations.

A man returned from the Greek island of Lesvos to Turkey. EPA

In emphasising relocation, the Commission has expressly rejected the notion that asylum applicants should have a choice about where to apply. In its view, to allow applicants to choose would act as a “pull factor” to the EU, and would itself result in a disproportionate sharing of responsibility. Accordingly, the policy paper contains questionable proposals aimed at deterring onward movement by applicants, including the withdrawal of resources and delays in the ability to acquire long-term residence status.

While member states may have reservations about a quota system, there is self-evident merit in a more equitable distribution of responsibility for asylum applications. An orderly approach is also preferable over onward movement by migrants as a way of achieving redistribution.

Nevertheless, if either of the Commission’s proposals were adopted and implemented, they could well be frustrated by migrants’ aspirations for protection in places that they consider suitable.

A unified EU asylum system

The second strand to the Commission’s asylum proposals is aimed at greater convergence and centralisation in asylum decisions.

First, the Commission proposes a tightening of the rules in the Asylum Procedures Directive to reduce the discretion given to member state authorities in the design of their decision-making processes.

Under these proposals, EU states would have to adopt a unified approach to which countries of origin may be presumed to be safe ones. There would be a common list of transit countries outside the EU and Schengen to which it is considered safe to return applicants. When a residence permit is being renewed, there would be a common approach to making decisions over whether a person has a continuing need for protection.

A Syrian passport being scanned in Saxony-Anhalt in Halberstadt, Germany. Jens Wolf/EPA

In addition, the Commission plans greater involvement for the European Asylum Support Office(EASO) in the asylum process, including through formal evaluation of member state systems.

The Commission’s proposals are motivated in part by concern at poor quality procedures and decisions in some states, as these tend to encourage onward movement by applicants.

Beyond that, the Commission seems intent on preventing member states from having either lower or higher standards of protection than the EU norm. Its reasoning is that any divergence tends to encourage people to move on to another country: the fewer the differences, the more orderly the asylum system will be.

These procedural proposals may face objections by states concerned with sovereignty over protection decisions and procedures. Member states may in particular wish to retain the freedom to be more protective than EU law requires.

Here, too, the missing element in the Commission’s proposals is provision for an EU-wide status for those recognised as in need of protection. If asylum procedures and decisions are to be so tightly regulated by EU law, with EASO supervision, it is illogical that protection should be provided by and within a single member state.

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