The Asylum Procedures Directive in Legal Context: Equivocal Standards Meet General Principles

Abstract

In the Tampere Conclusions, the EU pledged itself to develop 'common standards for a fair and efficient asylum procedure'. This chapter considers whether this commitment has been met in the Procedures Directive. In this discussion, fairness is understood in a general sense, as familiar from administrative law, requiring adequate hearing and impartiality, albeit adapted to the specificities of the asylum process. Efficiency is a more difficult concept. It tends to be conceived of in a narrow state-centric manner, as the minimisation of the costs of providing protection, in a manner apt to undermine fairness. The Tampere commitment in contrast implies that the notions must be conceived of as mutually reinforcing. The particular question addressed is how the highly qualified and differentiated procedural guarantees in the Procedures Directive will interact with the robust procedural standards of the general principles of EC law, which must be respected in the implementation and application of both the Procedures Directive and Qualification Directive. To this end, the next section contextualises the harmonisation process, in order to explain Member States' ambivalence towards the exercise, and hence the ambiguous outcomes. Then, I outline the highly qualified and differentiated procedural guarantees in the Procedures Directive, and the contrasting provisions in the Qualification Directive on evidential assessment. The role of various sources of fair procedures and fundamental rights is then explained, focusing in particular on the general principles of EC law. The next section examines four key procedural issues, where the apparent discretion afforded by the Procedures Directive is constrained by these general principles. These are the entitlements to an interview or hearing; a reasoned decision; legal aid; and effective judicial protection. The final section considers likely future procedural developments, as the EU enters a new phase of asylum policy development. This account of EC general principles reveals a significant transformation of asylum law implicit in its integration into the framework of EC law. EC law is a unique system of law, with many federal features, and strong enforcement mechanisms. With its own supranational court, the EC legal order permeates national ones, bringing well established legal doctrines which empower national judges and indeed litigants. Many of these doctrines have been honed in different, largely economic contexts. Strategic litigation is required to test their application in the asylum context. The doctrinal analysis in this chapter provides some potentially fruitful arguments that such litigation should employ. The full text of this article is available at http://www.unhcr.org/research/RESEARCH/4552f1cc2.pdf.