Asylum Legislation Research Articles

The Shengen Agreement and European Integration

Since the conclusion of the Schengen Agreement, the importance of asylum and migration policy for the EU has increased significantly. "Schengen" constitutes an essential element of the freedom of movement formulated by the European Union as the central objective of its policy, i.e. the unrestricted movement of all citizens between EU member states and the freedom of establishment granted therein. Cooperation of EU member states is mainly based on the development of restrictive rules for a common border and visa policy, as well as cooperation to limit asylum immigration. Since the 1990s, tools to improve border controls have mainly consisted of regulations declaring other states “safe third countries” and “safe countries of origin and transit,” making them responsible for asylum procedures. Such regulations have often been supported by treaties with countries of origin or transit, which have not always been willing or able to guarantee human rights. Member states in their domestic policies have extensive debates and disagreements on the direction of asylum policy. While some states want to protect the rights of those seeking protection, others prioritize controlling and limiting immigration. In the early 2000s, the EU decided on minimum standards for national asylum legislation and asylum procedures, not in the interests of those seeking protection, but mainly to prevent those seeking protection from moving to find better conditions in other countries according to very different standards. . However, minimum standards have remained limited by national discretion, so differences in procedures and benefits afforded to recognized asylum seekers and refugees remain extremely wide. Received: 25 December 2023 / Accepted: 25 February 2024 / Published: 23 April 2024

The reform of the Common European Asylum System in the context of the implementation the EU principle of solidarity

The polycrisis in the European Union has a great influence on the issue of solidarity. The events of recent years demonstrate a significant lack of solidarity within the EU. At the same time, solidarity is one of the principles of the Union’s immigration and asylum policy, as well as one of its key value. For a long time, it was assumed that all member states act in the spirit of mutual solidarity, which should flow from the very fact of a country’s membership in the EU. In other words, international solidarity within the Union is based on voluntariness, which does not require any special mechanism for its implementation. However, in recent years, this presumption has shown its inconsistency, and as a result, the idea has arisen to create a special solidarity mechanism. The migration crisis of 2015 forced the institutions of the Union to start reforming the Common European Asylum System, a key element of which is the creation of an effective solidarity mechanism within the Union. This article is devoted to the study of the transformation of the solidarity principle in the framework of the reform of the Common European Asylum System. The article highlights the main stages of the protracted reform of asylum legislation, reveals the key features of each stage from a solidarity perspective. The author comes to the conclusion that the proposed asylum system in the EU will not become fairer and will not ensure the implementation of the principle of solidarity. At the same time, the reform of the asylum policy could lead to an increase in the centralization of this policy and the expansion of the powers of the Union bodies, which will not make it possible to resolve the current problems and provide solidarity. Thus, solidarity will turn out to be only a tool in the hands of the institutions of the Union for carrying out planned reforms. According to the author, at the moment one can observe the transformation of solidarity within the EU into collectivism, when the interests of the Union are put above the interests of the member states, and the latter are forced to follow a common policy against their will.

THE MOST IMPORTANT CHANGES IN EU ASYLUM AND REFUGEE POLICY AFTER 2015

The current migration waves in the European Union, especially after the outbreak of war in Ukraine, are causing a lot of confusion. This has forced EU institutions and individual member states to rethink their policies towards refugees. Analysis of the migration phenomenon within the EU, due to its importance in both the European and international arenas, is crucial to achieving this goal. The research problem of this article is to discuss the impact of the migration and refugee crisis on EU refugee policy after 2015. The main hypothesis is that as a result of the “refugee crisis” in 2015, followed by the COVID-19 pandemic, a change occurred in the way EU security policy was conducted. An additional conditionality turned out to be the currently ongoing war in Ukraine, which caused a huge relocation of the population and, at the same time, revised the EU’s asylum legislation, showing its loopholes and inconsistencies. The research methodology includes a critical review of relevant literature, official documents, policy documents, primary and secondary legislation, statistical data, and content analysis.

Female genital mutilation/cutting as a ground for asylum in France

AbstractThis study examines how France's national asylum legislation has changed politically and ideologically from following a gender‐blind policy to recognizing gender‐based violence as a ground for asylum. Among European countries, France receives the largest number of female asylum seekers (FAS) from sub‐Saharan African (SSA) countries, where female genital mutilation/cutting (FGM/C) is practiced. Although France was one of the first countries to recognize FGM/C as a reason for granting asylum, it was reluctant to accept FAS as a “particular social group (PSG).” This article analyzes the increase in asylum claims based on FGM/C in the 2000s and examines the political discourses on changing asylum legislation up to the 2010s. Data from official reports of government organizations were examined to investigate the decisions on asylum applications involving FGM/C. France changed its policies in the 2000s to include gender equality in its republican identity due to ultra‐right party and social campaigns criticizing male members of minority groups for violence and discrimination against women. The then conservative government exploited these circumstances and enacted restrictive immigration laws that addressed FGM/C grievances partially; the succeeding socialist government recognized FGM/C as a ground for asylum. This study concludes by arguing that the 2011 European directive was a turning point for French asylum legislation to include gender‐sensitive interpretation of the grounds under the Convention on the Status of Refugees, in line with European policy. However, the status of SSA women and girls remains uncertain while they are subjected to medical examination and the application range of PSG could be reconsidered.

From Freedom to Detention: A Systematic Analysis of Swedish Asylum Legislation

As one of the fundamental human rights that belong to every human being, freedom of movement is prescribed at the international, EU and national level. Every person has the right to move freely and must not be unlawfully deprived of freedom. The right to freedom of movement is the rule and restricting it the exception. Nevertheless, there occasionally do exist justified reasons for restricting certain rights, including the right to freedom of movement. Asylum seekers (ASs), much like all other persons, have the right to freedom of movement, though not always without restrictions. The migration and refugee crisis that began in 2015 brought many a challenge for the EU, a major one being the striking of balance between protecting human rights and protecting the national security of the Member States (MSs). Until the onset of the 2015 migration and refugee crisis, Sweden was a country open to migrants and refugees and highly protective of their rights. Soon after, as a self-protection and – preservation measure, Sweden began increasingly frequently restricting the freedom of movement of and imposing detention on ASs. But did Sweden’s newly adopted approach remain in line with international and European legal norms? To determine this, this article offers a systematic analysis of the compliance of Swedish legislation with international and EU standards in regard to restrictions on the freedom of movement of ASs, including minors, with special reference to the imposing of detention.

The impact of ECtHR case-law on the CJEU's interpreting of the EU's return acquis: More than it first seems?

Abstract After canvassing the CJEU's return-related case-law and identifying the references to the ECHR and the Strasbourg case-law within it, based on empirical research of CJEU rulings, this article explores the possible reasons and motivations for the EU Court's more guarded approach towards ECHR and ECtHR case-law in interpreting and developing the EU's return acquis (as opposed to the EU asylum legislation). Potential explanations are manifold. Nonetheless, one might still argue that, substance-wise, quite a number of human rights protected under the ECHR and ECtHR case-law have been presented in the CJEU rulings as EU law standards. Hence, it is also arguable that ECtHR jurisprudence does play a role behind the scenes in the CJEU's deliberations but does not surface in the judgments themselves.

Populism and Law in Hungary – Introduction to the Special Issue

Abstract Populism is a nebulous concept that has almost as many definitions as scholars engaging with the concept that has a paradoxical relationship with law. On the one hand, populist politicians generally oppose the liberal ideal of separating politics and law, i.e. accepting that legal rules should limit political power, claiming that it would impede the expression of the popular will, yet they use legal regulation as their most important instrument to implement their policies. The chameleonic nature of populism and its instrumentalist approach to law presents a special challenge for lawyers that try to assess its impact on the domestic legal system. Populist legislation, after all, is seemingly indistinguishable from legislation adopted under non-populist regimes as populist regimes always claim to strictly adhere to formal procedural requirements and often justify the dramatic overhaul of previous rules invoking foreign examples. Hungary is a perfect litmus test for the examination of legal changes under populist leaders, because in 2010 the right-wing Fidesz-Kdnp party coalition won two-thirds majority in Parliament – a self-described “revolution in the voting booths” -, which gave it the power to completely overhaul the Hungarian legal system, even changing the constitution. In the past 10 years, virtually every significant branch of Hungarian law was recodified, adopting inter alia new criminal, civil, administrative and labor codes. The authors of this special issue attempted to analyze some of the most pertinent changes, in the field of constitutional law, adjudication, tax law, labor law, criminal regulation and asylum legislation.

Temporary protection: origin, evolution, essence

The article is devoted to the institution of temporary protection, as an exclusive means of providing assistance to forced migrants in the conditions of their sudden mass arrival. It was born as a response to extraordinary situations, but over time it developed into a generally accepted norm, included both in the national legislation of many states and in international legal documents, in particular, the common migration law of the European Union. The objective circumstances of the arrival of refugees from the areas of hostilities led to the development and consolidation of temporary protection procedures in the legislation of Ukraine. The article examines the reasons and circumstances of the emergence of temporary protection in the context of the general humanization of international law and the improvement of human rights protection mechanisms, as well as examples of its practical application. It was concluded that, firstly, temporary protection is a pragmatic way to solve the problems caused by the arrival from abroad of a large number of refugees as a result of various kinds of cataclysms and to provide emergency assistance to their victims. Second, as an extraordinary measure, it can be successfully applied even when the capacity of the asylum system is limited or absent. Thirdly, the temporality of protection is quite relative and largely depends on the situation in the country of origin of the refugees, as well as the policy of the receiving country towards forced migrants who have been granted this status. As a result of the full-scale Russian-Ukrainian war about 5 million citizens of Ukraine are currently use temporary protection in European countries. The peculiarities of their legal status should be taken into account when developing political and legal decisions regarding the return of refugees to the Motherland, in cooperation on this issue with countries of their stay. Further studies of legal norms regarding temporary protection and their practical implementation remain relevant in view of their importance for millions of forced migrants from Ukraine, as well as in connection with the need to improve asylum legislation in accordance with European standards as a component of the country’s European integration. Key words: temporary protection; refugees; forced migrants; right to asylum

Inhibiting integration and strengthening inequality? The effects of UK policy making on refugees and asylum seekers in Wales

In 2001, following the Immigration and Asylum Act 1999, four towns and cities in Wales became asylum dispersal locations. Whilst immigration and asylum remain matters reserved to the Westminster government, the Welsh Government has devolved responsibility in social policy areas that may impact upon refugee integration. This article highlights how successive Westminster governments have introduced immigration and asylum legislation creating a ‘hostile environment’ for asylum seekers. Such policies have restricted the civil and social rights of asylum seekers whilst simultaneously the Westminster government has focused upon policies for the integration of those granted refugee status only. This article reports on the findings from interviews conducted with 19 refugees and asylum seekers living in Wales, where in contrast to Westminster, the Welsh Government see integration as a process beginning on day one of arrival in Wales. It demonstrates how policies introduced by the Westminster government have led to restrictions on the day-to-day lives of forced migrants in Wales and their ability to integrate. It argues that in a system of multi-level governance, the Welsh Government’s vision of being a ‘Nation of Sanctuary’ and for integration from day one remains difficult to achieve when immigration and asylum remain matters reserved to Westminster.

A Liberal Region in a World of Closed Borders? The Liberalization of Asylum Policies in Latin America, 1990–2020

Recent scholarship has claimed that countries across Latin America have been adopting an increasingly liberal and more advanced legal framework for the protection of refugees. Yet little systematic cross-country evidence beyond case studies exists to back up this claim. To address this gap in the literature, I develop a new methodology — called the Asylum Policies in Latin America (APLA) Database — to measure policy outputs on asylum across Latin America over time. Applying this new methodology, I present the results of the codification of 19 Latin American countries, over a 31-year period (1990–2020), using 65 indicators to track the development of policy measures on asylum. The findings from this new database confirm the claim from existing research that countries across Latin America have developed an increasingly complex and more liberal legal framework for the protection of refugees. This liberal trend in asylum legislation stands in contrast to findings of increased restrictiveness over the same period across OECD countries. The APLA Database represents a unique contribution to the fields of migration and refugee studies, as it provides systematic data on the nature and development of asylum policies in Latin America through highly disaggregated data on policy outputs. Additionally, APLA demonstrates the existence of intra-regional variation. It also allows scholars to develop and test hypotheses in the field of asylum studies and provides a reference database for comparative analyses of asylum policies in Latin America, as well as a framework for the comparative study of asylum policies across the globe.

Denying refugee children protection

With new asylum legislation going through parliament, Joyinola Layonu, legal and policy assistant at the Migrant Children's Project at Coram Children's Legal Centre, looks at concerns for children's rights

Seeking asylum in Scandinavia: a comparative analysis of recent restrictive policy responses towards unaccompanied afghan minors in Denmark, Sweden and Norway

This article investigates recently imposed restrictions in the asylum regimes in Denmark, Sweden and Norway. The purpose of the paper is twofold. First, we aim to identify general changes in asylum policies and asylum legislation. Second, we discuss and compare the policy tools, practices and legislation that have undermined the rights of unaccompanied Afghan minors. We also observe new tools of internal and external deterrence and restrictive asylum policies, combined with tighter border controls. In the case of adult asylum seekers from Afghanistan, high rejection rates and deportations were used for years as an important tool of deterrence. However, these tools were seldom used against unaccompanied Afghan minors before the large influx of asylum seekers in 2015. Since 2015, increased use of rejections, combined with temporary protections, have emerged as the major tools for restriction. We identify similarities and differences in the policy restrictions targeting unaccompanied minors between the countries. Although we identify some recent diverging trends in Scandinavian asylum policies regarding unaccompanied minors from Afghanistan, the general trend of policy restrictions still prevails in all three countries.

Seeking asylum in Bristol: insights into psychological needs and resilience

PurposeThe purpose of this paper is to share research findings on the lived experiences of asylum seekers in Bristol (UK), with a particular focus on psychological needs and sources of resilience.Design/methodology/approachThe study was designed following the principles of action research and was carried out in three phases involving nine co-researchers. Thematic analysis was used to interpret the resulting data, collected through semi-structured interviews.FindingsThe findings highlight challenges which are faced by asylum seekers after migrating to the UK and indicate how these do not allow for psychological needs to be met, undermining resilience. Co-researchers indicated that aspects of the asylum system were perceived as unfair, adding to existing losses and promoting fear. Strength was found through engaging with communities and religious practices.Practical implicationsThe research suggests that asylum seekers feel misrepresented and misunderstood within the public realm and raises serious questions around the current asylum legislation. It offers practitioners insight into key determinants for psychological well-being from the perspective of asylum seekers, providing suggestions for sensitive and appropriate interventions.Originality/valueThe study offers original insights into asylum seekers’ experiences, with a specific focus on Bristol. The use of action research and the involvement of asylum seekers as co-researchers are also noteworthy, as collaborative research is scarce in this field.

Creeping Crimmigration in CEAS Reform: Detention of Asylum-Seekers and Restrictions on Their Movement under EU Law

Abstract This article analyses freedom-restricting measures set forth in the Reception Conditions Directive and its proposed recast; it does so through the lens of the concept of crimmigration, understood as convergence between criminal and (administrative) immigration and asylum law. To tackle “secondary movements” within the European Union (EU), the proposed amendment of the Directive establishes a broad understanding of the risk of absconding, which can justify detention, and expands the restrictions on asylum-seekers’ freedom of movement. The article argues that asylum detention under EU law pursues penal law objectives, such as deterrence and retribution. Restriction on freedom of movement, on its part, may amount to systematic surveillance. This observed crimmigration phenomenon is detrimental to migrants and refugees because the incorporation of criminal law objectives into asylum law has an asymmetric form. Although states subject non-citizens to increasingly punitive measures, the administrative label of immigration detention and restrictions on movement allows them to evade due process guarantees, which typically accompany criminal law proceedings. As the article proposes, appropriate interpretation and application of the principles of lawfulness and proportionality with respect to detention and restrictions on freedom of movement will help circumscribe the scope of the phenomenon of crimmigration under the EU asylum legislation.

Seeking Asylum in Germany: Do Human and Social Capital Determine the Outcome of Asylum Procedures?

Abstract Although the Refugee Convention and European asylum legislation state that decisions regarding asylum applications should be determined solely based on persecution and other human rights violations, the outcomes of asylum procedures may be subject to socioeconomic selectivity. This article is the first to analyse whether the human and social capital of asylum-seekers affect the results of decisions regarding their asylum applications and the length of asylum procedures based on a comprehensive longitudinal survey of 5,300 refugees in Germany. We find that socioeconomic and social capital resources increase the probability of approval of asylum applications and reduce the length of asylum procedures. Moreover, human capital is particularly rewarding for asylum-seekers from countries subject to severe political and civil rights violations, whereas social networks are more conducive when the case for protection is rather difficult to prove. Finally, asylum-seekers with a higher socioeconomic status before migration seem to be better positioned to efficiently instrumentalize social networks during the asylum process. Throughout the analysis, we control for variables that capture the violation of human rights and other forms of violence, changes in asylum policies and country-of-origin-specific fixed effects. The results are robust to different specifications and are representative for asylum-seekers arriving in Germany between 2013 and 2016. Altogether, similar to other claim-making processes, the asylum process seems to promote social inequality due to socioeconomic and social capital resources.

Temporalities of Refugee Experience in Germany. Diversification of Asylum Rights and Proliferation of Internal Boundaries

In Germany, the large influx of refugees arriving in 2015 led to numerous changes in asylum legislation and to new administrative measures. Apart from humanitarian reasons, integration efforts such as language learning, labour market inclusion as well as cooperation with authorities gained weight and are increasingly factored into decisions on residency permits or extension of stay. On the basis of participant observation within a refugee accommodation, the article argues that the legal and administrative framework of humanitarian reception constitutes powerful inclusionary and exclusionary mechanisms that entail not only spatial and social but also temporal dimensions. They unfold within the speed at which the applications are processed, the different residency titles (and non-titles) refugees receive and with this the different access to integration measures which again influence the speed of the “integration” of refugees into the German society. These temporalities build differential internal boundaries which impact on the everyday life and the future perspectives of the refugees in Germany.

Understanding Germany’s response to the 2015 refugee crisis

Purpose This paper aims to understand the discrepancy between Germany’s immediate positive response to the so-called “Europe 2015's refugee crisis“ and the strict asylum legislation adopted in Germany in the following year. Design/methodology/approach The discrepancy is attributed to external and internal forces. The external force is Germany’s obligation to adhere to the Common European Asylum System. The internal force is the role of the different policy actors. The paper focuses on the role of the media as an example of a private policy actor. Through adopting the theory of the social construction of target populations, the paper studies how the media constructs “asylum seekers”, the target of the new asylum legislation. The role of the media is analyzed using the methodology of qualitative content analysis of a selected number of newspaper articles. Findings The majority of the studied articles problematized receiving and hosting refugees and focused on the reason behind migration differentiating between asylum seekers fleeing conflict areas and all others who might be abusing the asylum channel. The findings of the content analysis, as such, resonate with the amendments that focused on facilitating the integration of accepted “refugees” but restricted further entry. As such, it could be argued that these findings explain the influence of the media on the amendments and as such provide an explanation to the discrepancy between the initial response and the amendments. Research limitations/implications The analysis focused on one newspaper. The findings, as such, are not representative. The aim is only to provide an example of how the German media dealt with the refugee crisis and to suggest using the theory chosen by the paper to analyze the link between asylum legislation and the construction of asylum seekers. To understand how asylum legislation is influenced by how asylum seekers are constructed, more studies are needed. Such studies could analyze the role played by other media outputs and/or the role played by other policy actors in constructing the target of the policy. Originality/value The media’s response is based on analyzing a sample of newspaper articles published by a German newspaper following the so-called 2015 refugee crisis. Accordingly, the findings represent an original endeavor to understand how the media reacted to the crisis.

Disintegration of the European Asylum Systems: A Featuring Attempt

This study assesses the integration path of national asylum systems within the European Union between 2008 and 2017. We apply factor and cluster analyses using ten European harmonised indicators on asylum, managed migration and immigration legislation enforcement. Our results are threefold: first, the disintegration of the European asylum systems started in 2012, three years before the mediatisation of the so-called refugee crisis. Second, this disintegration is rooted in Germany’s open-door refugee policy on one side, and excessive repressive policies on the borders in Italy, France, Spain and Poland. Third, the number of applications and the number of third-country nationals found to be illegally present or ordered to leave do not appear as roots of disintegration.

Bürger zweiter Klasse im Einwanderungsland?

While the technical details of immigration and asylum legislation remain the domain of a comparatively narrow field of experts, debates about nationality law often cause widespread attention within domestic academic circles. The latest reform was a case in point: in 2019, the government proposed depriving terrorist fighters of German nationality (provided that they have another passport) and suggested prohibiting the naturalisation of those with several spouses, thereby triggering a heated debate among experts. This contribution sets off to embed the legal-doctrinal analysis into a broader reflection on the role of nationality law as a forum for and vehicle of broader societal debates about the collective identity of Germans in the early 21st century. The article scrutinises this double function from an interdisciplinary perspective and shows that it is entrenched in the history of German nationality law with the extensive reform of 1999 as its climax. By contrast, the latest changes do not bring about a major conceptual or practical shift, since they continue earlier developments. Depriving terrorist fighters of the German passport adapts an established ground for the loss of nationality of those serving in foreign armies to the international context of asymmetric warfare; blocking the naturalisation of foreigners with several spouses reacts to a court judgment and complements several other small reform measures that have reinforced the integration paradigm within German nationality law over the past two decades. Against this background, the time may have come to disentangle nationality law from broader debates about collective identity at a time when many former immigrants have a German passport anyway. Such reconstruction of the national self-image beyond naturalisation may be addressed analytically from the standpoint of the citizenship paradigm, which remains normatively contested, but transcends technical focus of immigration, asylum and nationality legislation.

Реализация минимальных прав вынужденных мигрантов в странах Европейского союза: опыт Итальянской Республики и Королевства Испания

INTRODUCTION. Forced migration is one of the most difficult global problems. There is a clear interdependence between the problem of refugees and the issue of human rights, since human rights violations are one of the main reasons for the mass exodus of people from their countries of origin. It is also clear that counties that provide asylum have a sustainable practice of respecting the human dignity. Forced migrants have rights that must be respected during all stages of the exodus. We are talking about the fundamental rights and freedoms proclaimed in international and regional human rights treaties, primarily the protection of human dignity and the restoration of the minimum rights of people who left their countries of origin. This article discusses the problems of realization of the minimum rights of forced migrants, that is, those rights that guarantee survival and an adequate standard of living. The authors conduct a detailed study of national legislation in the field of forced migration of such European countries as Italy and Spain. In particular, this article analyzes recent legislative changes adopted in this countries in the field of asylum and the consequences for the realization of fundamental rights of refugees and asylum seekers. MATERIALS AND METHODS. This research is based on the analysis of the Universal Declaration of Human Rights of 1948, the International Covenant on Economic, Social and Cultural Rights of 1966, the Geneva Convention relating to the Status of Refugees of 1951, the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, European Social Charter of 1961, European Union Charter of Fundamental Rights of 2000, UNHCR standards for receiving asylum seekers, and also an in-depth analysis of the national legislation of Italy and Spain in the field of forced migration. The methodological basis of the research consists of both general scientific (comparative historical and statistical methods, methods of generalization and systems analysis, case-study approach) and specific scientific (formal legal and comparative legal methods, method of interpretation of legal norms) research methods. RESULTS OF RESEARCH. On the basis of the analysis of international treaties, European and national legislation, judicial practice of states, as well as doctrinal studies of different researches, the authors formulate some conclusions related to the main problems of legislative regulation and the implementation of minimum rights of forced migrants in such EU member states as Italy and Spain. DISCUSSION AND CONCLUSIONS. Despite the existence of international and, in particular, European standards in the field of human rights, practically those rights that are necessary for survival and maintenance of an adequate standard of living of people who have applied for asylum are not always fully respected. The experience of the Italian Republic and the Kingdom of Spain shows that fundamental rights of refugees can be often violated both during the examination of asylum applications and after their satisfaction. The absence of a unified legislative base, the tendency to pursue a more restrictive policy in the field of forced migration and unresolved problems of asylum legislation entail significant impediments for the realization in these countries of the basic rights of one of the most vulnerable category of people as forced migrants.