Common European Asylum System Research Articles

“Countries you go, asylum adjudication you find.” Asylum appeals implementation arrangements, actors' discretion, and organizational practices

AbstractThe article investigates the implementation of a crucial area of the EU asylum policy, which is asylum adjudication at the appeal stage. According to the Common European Asylum System, Member States must guarantee asylum seekers an effective remedy against first‐instance decisions. However, the EU policy framework leaves space for each country to choose its implementation model. Filling a gap in the literature on asylum policy implementation, the article explores the implementation arrangements (IAs) for asylum appeals in three countries, Italy, France, and Greece, which adopt different models. More precisely, relying on Strategic Analysis of Organizations and the Street‐Level Bureaucracy approach, the article addresses how specific elements of the IA influence organizational autonomy, implementing actors' routines and perceptions, as well as the degree of discretion. Moreover, it investigates the influence of de facto organizational practices on policy performance. The analysis of qualitative data suggests that different IAs, such as the nature of the body, the appointment system, and mechanisms of vertical accountability, shape de facto individual and organizational practices and actors' spaces for discretion. This process seems to impact policy performance, particularly in terms of uniformity, which is a core objective within the broader European policy framework for asylum adjudication.

Gender in European Union Asylum Law: The Istanbul Convention as a Game Changer?

Abstract The European Union (EU) has historically been a proactive player in advancing equality between women and men, and fighting gender-based discrimination. The past two decades have also seen the EU becoming a major actor in asylum law, with several EU secondary law instruments and a large amount of case law in EU Member States relating to the application of the 1951 Refugee Convention. Yet, these two areas of EU legislation – gender equality and asylum – have yet to become consistently connected. Similarly, judgments of the Court of Justice of the European Union addressing gender-related elements of asylum cases are scarce. Could the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) help bridge the gap? The Istanbul Convention identifies gender-based violence as an extreme form of discrimination and contains a whole chapter dedicated to women in the context of migration. This article sheds light on the yet-to-be-realized potential of the Istanbul Convention to amplify the protective power of the Refugee Convention in the EU. While at present neither the Common European Asylum System, nor its new iteration in the New Pact on Migration and Asylum, fully meets the standards of the Istanbul Convention, it may be expected that the EU’s accession to the treaty will further encourage a gender-sensitive approach in EU asylum law. The Istanbul Convention may well be a game changer for the protection of female asylum seekers, and possibly also for asylum seekers with other gender identities.

Enhancing the Rights of Protection-Seeking Migrants through the Global Compact for Migration: The Case of EU Asylum Policy

Abstract This article argues that the Global Compact for Safe, Orderly and Regular Migration (GCM) is not only a breakthrough for a rights-based approach in international migration governance but also an asset to the international protection system. By way of example, three key issues of the European Union’s (EU) Common European Asylum System are discussed: access to protection, reception conditions, and detention. These examples illustrate that faithfully implementing the Migration Compact would require the EU and its Member States to make significant changes in their asylum policy. The parallel emergence of the Global Compact on Refugees (GCR) may suggest otherwise – namely, that the GCM is not relevant for refugees and other protection-seeking migrants. However, the legal construction that best serves the object and purpose of both documents is the assumption that the two Compacts have an overlapping scope of application. The GCM addresses specific protection needs of protection-seeking migrants who are not covered by the 1951 Refugee Convention, and it serves as an umbrella, strengthening the core human rights of migrants regardless of their status, including protection-seeking migrants. Hence, the GCM improves the international protection system as a whole and should be acknowledged as such.

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.

Governancestrukturen in der Grenz- und Asylpolitik: starke europäische Agenturen, schwache mitgliedstaatliche Souveränität

This article analyses the impact of recent reforms in the Common European Asylum System on the governance structure of asylum and border policies of the European Union (EU). Drawing on the Core State Power framework and New Intergovernmentalism, we argue that recent regulations have significantly strengthened Frontex and the European Union Agency for Asylum (previously known as European Asylum Support Office) and therefore contribute to independent capacity building at the EU level. Interestingly, much of this capacity existed before it was codified by EU law, showing a remarkable trend of ex post judicialization. The Migration Forum suggested in the Asylum and Migration Management Regulation, however, is largely intergovernmental and thus rather confirms expectations of New Intergovernmentalist theories. Moreover, the proposals to enhance solidarity remain cautious and suggest no significant sovereignty transfers.

Shifting equality from the margins: the Common European Asylum System and the making of trans rights in the European Union

This article investigates the role played by the main European cooperation mechanism on asylum, the Common European Asylum System, in the making of lesbian, gay, bisexual, trans and intersex rights in the European Union. Based on a one-year qualitative inquiry in Brussels and online, it shows that European Union asylum policies were a key arena for the consolidation, invention and renegotiation of European Union lesbian, gay, bisexual, trans and intersex rights, especially concerning trans recognition. This pioneering role, far from being fortuitous, was part of the conscious strategy of the lesbian, gay, bisexual, trans and intersex movement to use asylum as a ‘side door’ to the creation of a de facto recognition of ‘gender identity’ as a protected characteristic. Characterising this phenomenon as a ‘politics of interstices’ and analysing the importance of ignorance (and not just knowledge) as a tool for policy change, this article makes the case for an analysis of policymaking that acknowledges the importance of non-equality-specific arenas in the making of equality norms.

Unpacking the Safe Third Country Concept in the European Union: B/orders, Legal Spaces, and Asylum in the Shadow of Externalization

Abstract Since its origins in the 1980s, the concept of safe third country (STC) has increasingly been used to deter and curb ‘irregular migrant’ arrivals. A burgeoning body of research has considered these measures throughout the world, particularly in the European Union (EU), Canada, Australia, and the United States. While much STC scholarship has been doctrinal in nature and has focused on the protection standards required in a third State, some of the literature has also examined more theoretical questions. Against this background, this article explores the consequences of the STC concept for refugees and their (in)ability to seek and enjoy asylum by drawing on critical border studies literature. The article first conceptualizes this concept with reference to theories of bordering, dissecting the STC concept as a bordering tool which constructs subjects as worthy and unworthy of protection, and decides where the latter are to be protected. It then explores how this concept has been operationalized within the EU’s Common European Asylum System and the implications of this phenomenon for refugees, using the Greek–Turkish context as a case study. The article particularly considers the developments after the EU–Türkiye Statement of 18 March 2016 and a joint ministerial decision of 8 June 2021 by which Greece formally designated Türkiye as a STC. It reveals that while these measures came in response to the so-called irregular arrivals at the Greek–Turkish border, thousands of refugees affected by these measures have been either removed from the Greek territory and returned to Türkiye without protection, or trapped in limbo in Greece because of their removal from the EU asylum system. The article demonstrates that the STC concept, which is increasingly used as a bordering practice, spatially and temporally prevents certain people from being recognized and treated as refugees in accordance with the Refugee Convention.

Migration Policy is Heading Down a Beaten Track. Comment on the Judgment of the European Court of Human Rights in the R.R. and others v. Hungary Case of 5 July 2021

In July 2021, the Grand Chamber of the European Court of Human Rights (ECHR) delivered a judgment in the R.R. v. Hungary case which perpetuates previous case law on obligations in providing migrants with international protection. The judgment is also of critical importance in view of the Common European Asylum System.  
 The ECHR has confirmed that Hungary had failed to full its obligations in providing migrants with international protection especially when it comes to the length of time applicants were deprived of their liberty and the extent of the protection afforded to the pregnant applicant and her minors. 

“Systemic Violations” in EU Asylum Law: Cover or Catalyst?

AbstractThe concept of a systemic fundamental rights violation refers to a particular set of violations that are both widespread and embedded, so their reoccurrence may be assumed to be likely. It takes on at least two distinctive roles in EU asylum law and policy. One role is linked with the functioning of the principle of mutual trust, a principle that obliges Member States to recognise each others’ systems and decisions, presuming them to be legal, apart from exceptional cases. In this context, the principle sets the standard from when the presumption of legality is rebutted. In its conceptualisation and application, it is in tension with European human rights law, and, for a period, set up frictions between the CJEU (in NS/ME and Opinion 2/13) and the ECtHR (in MSS and Tarakhel). This tale of judicial frictions is not merely of historical interest. Its legacy is, we conclude, a thin concept of systemic breach, characterised by an over-individualized approach to assessing the human rights risks. The second role for the concept of systemic violations relates to embedded violations, including at the EU’s external borders. We demonstrate the utility of this other invocation, in particular as systemic breaches often signal deeper rule of law issues both within particular national systems and embedded within the Common European Asylum System (CEAS). We illustrate that the CEAS itself brings about systemic human rights violations. Identifying and responding to the “systemic” in asylum increasingly relates to the credibility of the EU as a Union based on the respect for fundamental rights and the rule of law.

Gaps in Human Rights Law? Detention and Area-Based Restrictions in the Proposed Border Procedures in the EU

Abstract With the legislative proposals presented as the New Pact on Migration and Asylum on 23 September 2020, the European Commission sought to overcome the political impasse in reform efforts of the Common European Asylum System. A key element of this legislative package is the broader use of border procedures. The rationale is that by ‘keeping’ certain asylum seekers at the borders or in transit zones, return policies would become more effective. This paper undertakes a legal assessment of the proposed border procedures in light of legal obligations arising from the Human Rights to liberty and freedom movement. It argues that the qualification of asylum seekers’ entry as unauthorised seemingly pushes into a gap in human rights law, allowing for detention and area-based restrictions. However, a reconstruction of the applicable human rights standards shows that the blanket use of such measures is in fact unlawful, such that the proposal will have to be amended in that regard.

Bureaucratic configuration and discretion in asylum case processing: the case of the EUAA in Greece

This article takes an in-depth look at caseworkers at the European Union Asylum Agency in Greece. The agency’s increased role in asylum case processing and the emergence of the called “integrated European administration” is an unusual but nevertheless critical case to study for scholars of European asylum bureaucracies. Previous research into member state’s national migration authorities has shown that discretionary decision-making is widely deployed by asylum caseworkers. Generally, street-level bureaucrats tend to ‘reinterpret’ policy and creatively make use of the legal framework of the Common European Asylum System in order to make their day-to-day operations run more smoothly and resolve ethical dilemmas. However, this article finds that in the case of the European Union Asylum Agency, the compartmentalized institutional arrangement and short-term contracts removes both the incentive and ability for caseworkers to creatively reinterpret policy and deploy discretionary practices. It is therefore argued that scholars of asylum bureaucracy in Europe must pay increased attention to how the bureaucratic configuration of migration authorities.

Policy Entrepreneurs of European Disintegration? The Case of Austrian Asylum Governance After 2015

The re-establishment of border controls in the Schengen Area since 2015 and repeated contestation of the Common European Asylum System have made the policy sector of migration and asylum a topic of growing importance for European (dis)integration research. This article investigates differentiated disintegration and the factors that facilitate member states’ counter-projects to core-EU integration trajectories. Drawing on the concept of policy entrepreneurship and based on an analysis of policy documents, we use the case of Austria to examine how the government coalition, the Austrian People’s Party, and their chairman, Sebastian Kurz, have shaped European governance of asylum and borders in the aftermath of the 2015–2016 crisis. We first show how the Austrian government performed a shift towards bilateralism and multilateralism outside the EU framework by using transnational party alliances. Second, we outline a policy discourse that justified Schengen-internal bordering based on asylum politics, which eventually served to delegitimize Schengen’s enlargement in 2022. The article contributes conceptually to understanding differentiated disintegration in the sector of migration and asylum, and points to potential drivers of this development.

Implementation leeway in the Dublin system: evidence from Switzerland

ABSTRACT (Non-)implementation of rules is a key issue in the EU literature. During the European 'migration crisis' in 2015/16, several member states openly deviated from the clear rules the legal framework of Schengen and Dublin established. Although these controversies have attracted much attention, member states' authorities can also deviate from European rules in everyday decision making. Little is known about this leeway. For example, the Dublin system allows countries to send asylum seekers in an ‘outgoing procedure’ when they conclude that another Dublin state is responsible for the asylum application. This paper develops the argument that efficiency considerations lead national authorities to specialise in asylum seekers from countries from which they already have many residents. Asylum seekers from these countries are less likely to be sent in an outgoing procedure. The Dublin system does not intend this type of selection based on nationality. Using unique, high-quality register panel data from Switzerland, the statistical analysis of multilevel models shows that an outgoing procedure is indeed more likely for applicants from countries with a comparatively small number of residents. The findings of this analysis have broader implications for the Common European Asylum System.

Refugee Policy in Europe

This review article investigates the migration boom of 2015–2016 and highlights EU asylum vulnerabilities. Although it pursues centralisation, the planned Dublin IV raises questions. The use of human rights terminology by Frontex as a means of control shows informal externalisation. Migration restrictions take the stage in crisis management. Research conducted in collaboration reveals Europe's desire for a regulated refugee policy. Laws in Latin America differ from those in the EU in meaningful ways. Defying the Common European Asylum System (CEAS), Finland's crisis reaction demonstrates political and Europeanization tendencies that go beyond Zaun's theory. By highlighting the interaction of national viewpoints, politics, and Europeanization in forming refugee policy, the study advances knowledge of CEAS.

Legal Regulation of the External Dimension of the Common European Asylum System: current state and future perspectives

INTRODUCTION. The article provides a thorough analysis of the external dimension of the European Union’s (EU) migration and asylum policy and its main components. The primary object of the research is the external area of the EU’s activities in the field of forced migration. The aim of the article is to define political and legal contours of the external dimension of the Common European Asylum System (CEAS), trace its development from 2015 to 2022, and determine future directions of its evolvement.MATERIALS AND METHODS. The aforementioned objectives are achieved through deployment of the following methodological designs: descriptive, exploratory, historical and case study. The article gives a detailed overview of the programming documents of the EU, acts of the EU law concerning forced migration, and their implementation in the context of global and regional instabilities.RESEARCH RESULTS. Forced migration as an object of legal and political regulation on the part of the EU is subjected to “externalization” due to inconsistent internal practices and overall deviation of the EU members from the fundamental and internationally recognized burden-sharing principle in the field of refugee law. Such an approach should be perceived as an additional reason for potential deterioration of the migration situation in Europe, not to mention other possible implications on the human rights and economic dimensions.DISCUSSION AND CONCLUSIONS. The results of the analysis allow to draw significant conclusions: the external dimension of the CEAS became a top priority for the EU predominantly due to the inability of the European actors to reach consensus on the internal elements of the system; the external dimension of the CEAS may be characterized as a complex system consisting of political, legal and quasi-legal acts governing the EU’s external actions in the field of forced migration; the EU’s support became dependent on the willingness of its external partners to cooperate on migration-related issues; several external actors gained more bargaining power; external partnerships need to be readjusted in order to be efficient under current geopolitical circumstances.

Nationality Status Determination in Asylum Procedures under the CEAS and the Potential Impact of the ‘New Pact on Migration and Asylum’

Abstract The determination of asylum seekers’ nationality, or lack thereof, is a key component of assessments of applications for international protection, and can prove difficult when asylum seekers do not submit any valid identity or travel documents, or are stateless or at risk of statelessness. This article investigates how nationality status determination is relevant and how it is regulated in the Common European Asylum System (CEAS) and in the ‘New Pact on Migration and Asylum’ (the Pact), that is currently under negotiation in the European Union (EU). Under the CEAS, the determination of nationality is not only critical to assessing whether the applicant qualifies for international protection, but can also determine the type of procedure through which their application is examined, and accordingly the level of procedural guarantees to which they are entitled. Under the Pact, with the introduction of a pre-entry screening and the obligation to process asylum applications lodged by individuals from countries with low recognition rates through border procedures, the determination of the applicant’s nationality becomes even more critical. In fact, the Pact institutionalizes the channelling of asylum seekers into substandard procedures based on their nationality, a practice that has been widely used in ‘hotspots’ in Greece and Italy. This is even more problematic considering that the Pact, like the current CEAS, provides only very general rules relevant to establishing a claimant’s nationality status. This article sheds light on an overlooked aspect of asylum procedures, and calls for the development of specific guidance on nationality status determination in asylum procedures at the EU level.

Telling ‘more complex stories’ of European integration: how a sociotechnical perspective can help explain administrative continuity in the Common European Asylum System

ABSTRACT This article tries to explain an apparent paradox in the Common European Asylum System (CEAS): despite political stalemate over CEAS legislative reform and lack of trust amongst MSs, administrative cooperation shows operational continuity. Drawing on the ‘Infrastructural Europeanism’ approach, we argue that a sociotechnical perspective allows detecting the material means that operationally provide continuity to administrative action, despite policy gaps. It reveals mediating agency exerted by less visible actors who are nevertheless crucial to the integration process. Through a sociotechnical lens, alleged integration failures – like in the post-2015 asylum crisis – can reveal operational cooperation not visible if only legislative outcomes are taken into account. Empirically, the article shows how the International Organization for Migration assumed a role in mediating relocations between MSs, overcoming an implementation gap in health data circulation, thanks to its data infrastructure able to prompt data production, harmonise administrative standardisation and build continuity in time.

The crisis of the Common European Asylum System: rethinking solidarity in light of Human Rights

In 2015, the unprecedented arrival of refugees and irregular migrants in the European Union (EU) put a strain on the Common European Asylum System (CEAS), thus exposing a number of deficiencies in EU external border, asylum and migration policy. The need to reform the system became urgent and the EU was presented with both a challenge and an opportunity to further advance towards a much-needed consensual and long-term solution for the harmonisation of the asylum system, standing on the basis of solidarity and responsibility-sharing. This paper argues that the new comprehensive approach to migration and asylum praised by the European Commission (EC) is still missing in the recent Pact on Migration and Asylum of 2020, which represents more a missed opportunity than the real reform that the CEAS needs. The chosen legislative path, the dualistic understanding concerning the approach to migrants, and the new solidarity mechanism envisioned in the Pact show how the lack of consensus among Member States, the tendency towards the creation of a “Fortress Europe”, and an asymmetric idea of inter-state solidarity prevail, preventing the development of a common European framework for migration management that is both effective and in line with the EU’s values and objectives. This paper further argues that, if the EU fails to shift the paradigm of solidarity, the system is at risk of remaining fractured and incapable of withstanding the future challenges of migration. A new framework must be grounded on the principle of solidarity, as defined in the Article 80 of the Treaty on the Functioning of the European Union (TFEU) which, in turn, needs to move from a state-centred approach to a concept of solidarity based on affected individuals, thus setting its foundations on a human rights basis. The EU needs, in fact, to strongly step up as a humanitarian actor and place protection and responsibility-sharing at the centre of its agenda: the protection of fundamental human rights in its territory and beyond is at stake.

The best interests of the child in ECJ asylum and migration case law: Towards a safeguard principle for the genuine enjoyment of the substance of children’s rights?

This article discusses whether and how the best interests of the child, enshrined in Article 24(2) of the Charter of Fundamental Rights, became an instrument for increased protection of the rights of migrant children and their families in the European Union. First, an overview is presented of the temporal and substantive expansion of the case law of the European Court of Justice reflecting on the use of references to Article 24(2) of the Charter. Then, a range of issues is analysed concerning the interpretation of the legal instruments of the Common European Asylum System, the Family Reunification Directive, and the Return Directive. The ECJ decisions are grouped by sub-topics and presented in chronological order. This analysis allows for a reflection of the evolution of the Court’s interpretation of the best interests of the child in this field of Union law. It is observed that the primary consideration of the best interests of the child is gradually becoming, if not a general principle, at least a safeguard principle for the genuine enjoyment of the substance of children’s rights. Best Interests of the Child, Migration, Asylum, Family life, Safeguard Principle, Genuine Enjoyment of the Substance of the Rights

ACCELERATED ASYLUM PROCEDURE IN LATVIA, LEGAL AND PRACTICAL ASPECTS

Recent years have brought many challenges to all countries of the European Union in the field of immigration and asylum. Latvia, in the process of involving into the common European asylum system, has made different practical actions to improve the asylum procedure. Being a European Union country Latvia is subordinated to common changes in the field of asylum that are now in process of realization. But the events of recent years have influenced the sphere of asylum. These are: COVID-19, hybrid threat and situation at the Belarus border and recent events concerning situation in Ukraine. The authors have studied most current events during recent years focusing on questions on the topic. The aim of this article is to analyse the current situation of asylum in the EU, touching upon main trends in the world of refugees, to identify the main problems in the existing asylum procedure in the EU, in order to define the accelerated asylum procedure in the legal basis and in practical life, and to offer solutions. The object of the article is the asylum system. The subject of the article is the accelerated asylum procedure. In order to achieve objectives, following research methods were used: monographic research of theoretical and empirical sources in order to analyse and evaluate various asylum domain information, analytical method in order to acquire legislative content and verities, historical method, comparative method, systemic method, descriptive statistics method and correlation analysis, methods of interpretation of legal norms: grammatical method of interpretation, the historical method of interpretation, teleological method of interpretation and the systemic method of interpretation of legal provisions.