CEAS: CURRENT STATE OF AFFAIRS & FUTURE PERSPECTIVES

1. CEAS: CURRENT STATE OF AFFAIRS& FUTURE PERSPECTIVES Philippe DE BRUYCKER MPC/EUI & ULB Coordinator of the Odysseus Academic Network debruyck@ulb.ac.be

2. OUTLINE • EVALUATION OF CURRENT STATE OF EUROPEAN ASYLUM POLICY • PERSPECTIVES FOR THE FUTURE COMMON EUROPEAN ASYLUM SYSTEM

3. I. CURRENT STATE OF ASYLUM POLICY • Evaluation • Added value of Lisbon Treaty • Harmonisation • Coordination • Solidarity • External dimension

4. Evaluation • Should be “systematic, efficient, impartial and objective” (programme of The Hague) • Insufficient (too legal) in absence of necessary data (even no correlation tables) • Too vertical (per instrument) and not enough horizontal • Partial in case of Dublin regulation (arbitrary choice in favour of status quo)

5. ADDED VALUE OF LISBON TREATY • Article 78 TFEU (+ 80!) • New objectives & extension of competences • CEAS: content of notion (like borders system?) • components? • Legislative harmonisation • also external dimension (point g) with strange origin going back to Convention) + solidarity (financial?) under article 80 + coordinationunderestimated

6. 1. HARMONISATION • 2 generations of rules foreseen since Tampere conclusions (1999) despite Amsterdam (minimum standards) • 4 legislative building blocks under revision: 1. Reception conditions (deal) 2. Qualification (adopted in 2011) 3. Asylum procedures (almost deal) 4. Dublin system (deal) & Eurodac (bargaining) + Temporary protection

7. 1. HARMONISATION • Dublin system has not been sentenced as such by ECHR in MSS and ECEU in NS • But ECHR imposes Member States to assess if presumption in favour of other EU Member States should not be rebutted • Vain debate on suspension mechanism (ECHR jurisprudence imposed it in severe terms for Belgium)

8. 1. HARMONISATION • Dublin: inefficient system • Dublin requests launched for only 12% of applications (70% are take back requests based on Eurodac; 2/3 of take charge requests do not lead to a transfer); • 96% applications examined by State where lodged • Costly system that Commission and Member States refuse to evaluate

9. 2. COORDINATION • Refusal of open coordination in 2001 • Failure of practical coordination (2006 Commission communication): only EAC & COI • Battle on share of executive after legislative power (ECJ case on Comitology on interception at sea) • Creation of EASO: limited powers but important institutionalisation (like Frontex) • About implementation powers of Member States • Bottom-up harmonisation • Too early to assess its action

10. 3. SOLIDARITY • THE difficult debate: political but also legal! • Parallel with Euro crisis! • New Lisbon provision: article 80 TFEU • Absence of objective basis for debate • Dublin: responsibility determination, not and even against solidarity • Council conclusions of March 2012 • Commission communication(2011/835)

11. 3. SOLIDARITY • Improved status quo: recast of Dublin (growing legitimacy with progress of harmonisation) and EASO: sufficient? • Intra-EU Relocation of protected persons: currently insufficient (Eurema) • Recent extension of long term resident status to protected persons: symbolic

12. 4. EXTERNAL DIMENSION • GAMM: paper work? • Asylum became part of the GAMM: so what? • Resettlement with third countries: slow acceptance but insufficient progress • RPP: usefulness? • Paradox of the CEAS: accessibility

13. II. PERSPECTIVES FOR FUTURE • Legal perspective • Institutional perspective • Jurisdictional perspective • Substantial perspective • Distributive perspective • External perspective

14. 1. Legal perspective • Meaning of right to asylum (article 18 of EU Charter): direct effect? • Ratification of GC envisaged in Stockholm programme: - possible in terms of EU competences but requires amendment of GC (ECHR model) - Added value? CJ becomes direct interpreter of GC fully integrated into EU law, but EU not a member of UNHCR Excom; remedy against EU agencies?

15. 2. Institutional perspective • Creation of EASO is crucial step • But EU not yet ready for its natural development (refusal of any direct or indirect power on national asylum authorities) • Precisely need to give EASO power to adopt guidelines (like in competition policy)

16. 3. Jurisdictional perspective • Increasing contribution of CJEU: • finally happening (qualitative / quantitative) • necessary but insufficient (judging in law and not in fact) • EU still needs ECHR (cases MSS and Hirsi)! • Creation of EACourt unrealistic • Control of CJ regarding legality of guidelines as well as their interpretation and implementation by Member States

17. 4. Substantial perspective: reception conditions • New debate coming up with detention provisions in reception conditions directive (similar paradox of return directive?) • Conceptual problem of definition of “vulnerable” asylum seekers “with special needs” solved? • Appearance of identification “mechanism” within the recognition procedure

18. 4. Substantial perspective:asylum procedures • Lack of European strategy in administrative law: harmonise procedural guarantees rather than procedures? • Legal guidance coming from general principles and jurisprudence • limitation of free legal aid to appeal phase: not strict legal problem? • Problems with exceptions to right to an effective remedy

19. 5. Distributive perspective • EWM in Dublin to impress (national) judges? • Financial (rather than physical) solidarity? • Like in external borders (upgrade ERF) • which level of burden should Member States support? • how much should the EU redistribute? • MPC/EUI & Odysseus research project pending under ERF call for tender

20. 5. Distributive perspective:Odysseus proposals • Extend to protected persons freedom of movement for workers like for Europeans after 3 years (= period of renewal of 1st permit following recast of Qualification directive) • followed by automatic recognition of protection status by new host Member State (as requested by Lisbon)

21. 5. Distributive perspective:Odysseus proposals • UNHCR model keeping most of Dublin (responsibility allocated to Member State of introduction of request, unless closed links with other Member State) instead of ECRE model (free choice of asylum seeker) • In combination with distribution key: • giving to Member States above quota increased financial help through EU • Imposing relocation (physically or financially ) toMember States under quota (still voluntary for asylum seekers)

22. 6. External perspective • Lack of evaluation of impact of legitimate fight against illegal migration on access to asylum despite (which?) EU extra-territorial responsibility • Examination on sea difficult to organise with due respect for EU legal obligations • Solution: PEP for asylum seekers (visa with LTV)? • Develop « global approach of access to international protection » in The Hague Conference on international private law?

23. CONCLUSIONS • 2012 deadline will be met • But only for legislative harmonisation whose level must be assessed • Need of asylum code (as envisaged by the Commission for immigration) in the long term for level of harmonisation but also horizontal issues • Most of work has still to be done regarding: • coordination between Member States • solidarity • external dimension • CEAS not finished and heed for new plan for its development in next JLS programme for 2015-19

24. THANK YOU Philippe DE BRUYCKER debruyck@ulb.ac.be http://www.ulb.ac.be/assoc/odysseus/