Cecilia Malmström
EU Commissioner for Home Affairs [1]
A Common European Asylum System
I will focus on a fundamental right that is very close to my heart, one that is easy to proclaim in theory, but more complicated to defend in practice: the right to asylum. I have dedicated a large part of my mandate to this issue.
Asylum is one of our most important policy areas. Our Schengen zone and area of free movement means that we have to have a common asylum system. You cannot have open borders and free movement for citizens, Schengen visas and common rules on immigration, but then not have a common asylum policy. It just wouldn’t work. And it didn’t work before. The system was already unstable – so we had to fix it.
Our first policy programme in the field of Justice and Home Affairs – the Tampere Programme of 1999 – was the beginning of the Common European Asylum System. It led to the adoption of several new EU laws concerning the whole asylum process – common standards on reception conditions, rules on who qualified for refugee status, common standards on procedures, and so on.
This was a great achievement, but it was only a first step. We were not fully satisfied with the outcome because these laws were in many ways a half-hearted effort. They were adopted by unanimity of Member States, which meant that every Member State could insist to have “their” specific provisions in.
In the end, the laws became a “Christmas trees”, heavy with unwanted decorations. As you as practitioners well know, they were full of ambiguities and loopholes.
The situation across EU Member States was therefore in the end still too varied – and the levels of protection still not strong enough. The lack of clarity made that the courts needed to rely a lot on legal interpretations based on general principles and case law which was often vague.
That is why we embarked on negotiating a revised set of EU asylum laws in 2008. This was not an easy journey since Member States came from so different realities. Some Member States had well-established asylum systems which they were very reluctant to change. Others, including Bulgaria, were newcomers to asylum with very few asylum seekers, and they were reluctant to invest in new systems.
Last summer of 2013 we finally managed to agree and conclude the negotiations. Our newly agreed rules will lead to fairer, quicker and better quality asylum decisions. There will be greater protection of unaccompanied minors and victims of torture. Our laws will also ensure humane material reception conditions (such as housing) across the EU and that the fundamental rights are fully respected. And we have significantly restricted the possibilities to detain asylum seekers.
Implementation of CEAS
Of course, agreeing a law is only half the effort. The real work and real challenge for many Member States will now begin with the implementation of these new laws. We need to create an asylum system that functions in practice across the EU, and Member States need to transpose these new rules into their national legislation.
Our main focus now will be to establish coherent implementation across the EU so that we can be sure of a better future for the European Asylum System.
A key challenge for us remains to know what is going on and being able to prove violations of the law. Asylum seekers’ claims are not always dealt with in the light of a court room. What happens at the borders, in detention centres, or in interview rooms, is often without witness or proof. This is a particular challenge for our ability to take Member States to court for infringement of their obligations.
A true common asylum system is not built in a day. We are now embarking upon a new period of implementation of the system we just agreed on this summer. The new laws will however give us a much better basis for good implementation. The texts remain complicated; but now they contain clear (or at least clearer) rules on many difficult questions as I briefly mentioned before (detention, access to the procedure, effective remedy and the right to remain on the territory, definition of actors of persecution and actors of protection; and many, many more).
As many of the loopholes, derogations and the rest of the “Christmas tree” are gone, all Member States will have to take an in-depth look at their own asylum systems and adapt them to the common principles.
The more we can be sure that all Member States are “pulling their weight” and showing responsibility by implementing the rules correctly, the easier it will be for others to show solidarity to those MS in need of help.
The role of legal practitioners will be of great importance now as you will have to use and interpret these new laws in different practical situations; be it as judges, representing applicants in court or representing national authorities.
The Commission will provide assistance in this regard – through funding, training and through practical cooperation initiatives together with EASO. Proper implementation of the new CEAS will as you understand be our KEY priority in this field for the coming years.
Solidarity
I am confident that the proper implementation of the laws will ensure an equally high quality of the systems in Europe. However, that process will be greatly facilitated by enhanced cooperation and responsibility sharing.
To achieve this we have created a new Agency – the European Asylum Support Office, EASO – specifically to assist Member States in implementing EU asylum law and in areas of practical cooperation. For example, we have designed training modules in a European Asylum Curriculum with the aim of training asylum case workers to the same standards across the EU.
Through sharing country of origin information the case workers can access the most up to date information about the situation in countries of origin, to be able to make an informed decision as to whether the applicant really has a well-founded fear of persecution.
I recognise the difficulties with the tensions over the solidarity versus responsibility argument. Some Member States have felt like they are let down by the rest, in particular by the ‘Dublin’ system for the allocation of responsibility between Member States for dealing with asylum claims.
However, there is a misperception that the Dublin system channels most asylum applicants to the periphery of the EU. In fact, 70% of asylum cases are handled by 5 Member States – Germany, France, Sweden, the United Kingdom and Belgium – none of which is at the external border of the EU.
Some Member States therefore think that those calling for help are not taking their responsibility. The result has sometimes been paralysis even when urgent action was called for.
Role of courts
The judiciary will continue to have particular responsibilities throughout the implementation process. I see it in two ways. The first is operational. The new directives will improve the accessibility of courts in the context of the asylum procedure by setting out clear standards on the right to an effective remedy and better access to free legal assistance; but also in the context of reception conditions and detention.
The courts must ensure that our standards are fully respected in each individual case that is brought to their attention. By doing this, the courts will also play a second, strategic role. By producing case law, courts will continue to give more and more flesh to the agreed rules, especially as concerns qualification criteria.
In this respect, good collaboration between judges on the European level would be extremely useful. Given the complexity of asylum questions, it is important for all legal practitioners to be fully aware of all the different cases and issues that come up in courts throughout Europe.
I think it is important to be able to consider solutions found in different Member States to similar problems and see if they can be applicable in others. This is an element of building a coherent European approach to asylum.
Other Challenges
Immediately after political agreement was reached on our revised asylum laws last June, the new Common European Asylum System was tested due to the serious crises developing on our external border in Syria and in the Horn of Africa. This led to a big displacement of people coming through North Africa.
It has been a dramatic time for those Member States on the “frontline” – and in particular for Bulgaria, Greece, Cyprus, Malta and Italy. The Commission, together with EASO and Frontex, started a close monitoring of the situation on the ground before the summer, in close cooperation with the relevant national authorities.
It is important that contingency arrangements are in place so that we are able to cope with large numbers of arrivals, if that happens. Our objective has been to enhance the preparedness of the EU in the event of a large influx, especially from Syria.
By doing so we have been able to pre-position available EU assistance and instruments, with over 20 million euros already earmarked for this purpose, on top of the funding made available following the tragedy of Lampedusa. These funds will be used to strengthen capacities of Member States on the frontline, including Bulgaria, but also other MSs (Germany, Sweden, France, the Netherlands) who are already confronted with a very high migration pressure.
Situation in Bulgaria
As mentioned before, since Bulgaria is a “frontline state” it has faced big arrivals of migrants and refugees in recent months, which has put high strains on the asylum system. These developments have however also exposed some existing weaknesses in the asylum system in Bulgaria.
But I welcome the significant steps being taken by the Bulgarian authorities to tackle the challenge. These will strengthen the ability to cope with large numbers of asylum seekers.
The Commission and EASO has for a while now been helping Bulgaria in this process with financial assistance, expertise and advice together with other MS. While the situation still remains difficult, the assistance being given, shows a good example of how solidarity can be shown towards a Member State under particular pressure.
Of course, our interest in ensuring protection for refugees extends also beyond the EU border. Our asylum system applies only to those who are lucky enough to make it to Europe. As a result, the reality is that desperate people will attempt dangerous journeys across the Mediterranean, risking their lives to come here to seek protection.
The Lampedusa tragedy of October 2013 led to calls for renewed EU action as our southern sea border is more and more perceived as a common EU concern, and not just the concern of one Member State.
The Task Force Mediterranean was therefore established with the aim of developing short term operational solutions to prevent similar tragedies from happening again. The Task Force actions will contribute to saving lives in the Mediterranean and supporting Member States facing a heavy migratory pressure.
Future projects
In parallel to our focus on implementation, we have embarked on the reflection on a more long-term future. Little over a week ago the Commission presented the so called “post-Stockholm Communication” which will form a basis for further discussions in the Council.
One idea which is already agreed, is to work on joint processing of asylum applications—that is the possibility for officials from several Member States to work together to process a number of requests, perhaps as a means of supporting a Member State facing particular pressures.
Other ideas have also been floated and will be considered. For example, there is the idea of allowing EASO to monitor the quality of asylum assessments by helping Member States audit their asylum decisions.
The EU must also continue to show solidarity with the developing world, which hosts the vast bulk of the world’s refugee population – we must not forget in the context of Syria for instance, that millions of refugees are in the neighbouring countries whereas 65 000 have come to the EU.
An important way to show solidarity with the EU’s neighbouring countries is by increasing our commitment to resettling refugees. We must also intensify our efforts to build the capacity of third countries to be able to receive refugees in an appropriate manner, in line with international standards. Strengthened Regional Protection Programmes will be a vital tool in this regard.
We should also explore the possibility of enhancing legal avenues for persons in need of protection to come to Europe, for example by coordinating MS’s approach to the issuing of humanitarian entry visas.
Conclusion
When we talk of an asylum system on the European level, we sometimes view it in terms of abstract principles and concepts. But at the centre of the system are the practitioners. And the system also needs to be fair to them. It needs to give them all the tools needed for them to continue to do a good job: clear laws, good training, enough resources.
I think that it is likely that the landscape on asylum will continue to change considerably over the years to come, just as it has done so hugely over the past twenty years.
But we have more and more European norms, and if we work together well enough, we can smooth out many of the irregularities that have faced us, so that we arrive at both a Common European Asylum Policy, as well as a better outcome for both our citizens and for those coming to our Union.
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[1] This paper was presented at the conference “The Common European Asylum System: challenges and perspectives”, organized by the Bulgarian Association for European Law and the Representation of the European Commission to Bulgaria in Sofia on the 24th March 2014.