The Evolution of EU Law on Refugees and Asylum

Abstract

In this contribution, we explore evolution and stasis in EU asylum law and policy. We identify two tensions at the heart of the CEAS, between the commitment to protection and deflection of protection obligations, and between internal mobility within the EU and the immobilization of asylum seekers and refugees. We note the role of these foundational tensions in generating and exacerbating the ‘refugee crisis’ of 2015/16. This chapter is premised on a widely-shared understanding of the role of EU asylum policy in that crisis, namely that by illegalizing the travel of asylum seekers and refugees in search of protection, it contributes to the dangerous mass flight, which in turn generates humanitarian and political crises. We then analyse four key dimensions of EU asylum policy in light of these tensions: access to asylum, responsibility-allocation, legislative harmonisation, and institutionalised practical co-operation. Across these four fields, we identify the limits of EU law, and its general stasis, in spite of changes in Treaty telos, law-making processes, and EU enlargement. We briefly consider the role of the CJEU, still very much in the shadow of the ECtHR in asylum, in spite of its numerous rulings on the CEAS. Overall, we demonstrate its fairly minimalist approach in this area, avoidance of controversial cases by dubious use of inadmissibility findings, and failure to catalyse policy changes. Against this backdrop of legislative, political and judicial caution and inertia, we identify two key trends: a move towards greater institutional cooperation, including through the creation of a dedicated agency, the European Asylum Support Office (EASO), and a general flight from law in this policy field. We conclude by considering the likely impact of these trends on EU asylum law.