EU Asylum Research Articles

THE EU RESPONSE TO THE MASSIVE INFLUX OF DISPLACED PERSONS FROM UKRAINE IN 2022

Russia has been conducting military action against Ukraine since 24 February 2022, in violation of the prohibition on the threat or use of violence against the territorial integrity or independence of any state, which is one of the fundamental principles of modern international law. The Russian aggression has resulted in a sharp increase in migratory pressure on the EU. As a result, the Union launched a special temporary protection procedure for the first time in its history. As temporary protection is one of the instruments of the Common European Asylum System, this article begins with an analysis of its nature within EU asylum policy. The article’s next research question and objective relate directly to the EU’s response to the Russian act of aggression. They are relevant for clarifying the political context of the activation of temporary protection and, simultaneously, establishing the circumstances necessary for the activation of temporary protection in the light of Council Directive 2001/55/EC. This Directive and Council Implementing Decision 2022/382 determine the normative construction of the temporary protection 2022. These elements are its duration, the categories of beneficiaries, and the beneficiaries’ entitlements, which result in obligations for Member States. The analysis of these issues will determine to what extent temporary protection is a viable and effective measure of international protection for displaced persons from Ukraine.

Security-centric approach in the use of digital technologies in EU migration and asylum policies

ABSTRACT The rapid evolution of digital technology, particularly in the domain of surveillance and identification, has brought forth a multitude of implications for the European Union’s approach to migration, asylum and border control. The use of digital technologies at the EU's external borders has emerged as a critical point of contention. By referring to ‘security-centric approach’ to describe the expansion of national security-related uses of digital technologies in migration and asylum, the article unveils the extent to which security considerations have permeated the use of digital technologies in this area. The analysis aims to demonstrate the predominance of this security focus and only a marginal role of efficiency, convenience and market needs objectives in the use of digital technologies in EU migration, asylum and border control policies.

The new EU asylum laws: taking rights half-seriously

Abstract The EU has finally adopted comprehensive amendments to its asylum laws. To what extent are those changes compatible with human rights? This article examines this question by reference to the new laws on qualification, procedures, responsibility for asylum applications, reception and screening of asylum seekers, and resettlement of refugees, compared to the prior legislation (and case law). The main themes of the new laws are restraining movements of asylum seekers between Member States, coupled with further harmonization of the law. While the new Pact attempts to reach a compromise between immigration control and human rights, the article argues that such a compromise could prove to be uneasy and unstable.

Understanding solidarity in the European Union: an analytical framework

Solidarity is a key concept in the European Union. However, the concept of solidarity lacks systematic theoretical examination to enable a sufficient understanding of its contextual meaning and to provide an operationalisable benchmark for analysis. To address this research gap, I propose an analytical framework for solidarity in the European Union that features four necessary conditions: particularity, instrumentality, reciprocity, and responsibility. I develop the framework through a transdisciplinary conceptual history approach, substantiated with a thorough document and legal analysis of European integration and CJEU case law. I demonstrate the robustness and validity of the proposed framework by using EU asylum policy as a test case, a field where the question of solidarity is notoriously salient, which is exemplified by an area-specific expression of the concept: fair sharing of responsibility between the EU member states. Moreover, I show that the EU’s solidarity principle is necessary to maintain the bloc’s raison d’être.

Analiza porównawcza zaangażowania parlamentów narodowych w reformę polityki imigracyjnej, azylowej i kontroli granic zewnętrznych UE między 2015 a 2020 r.

COMPARATIVE ANALYSIS OF THE INVOLVEMENT OF NATIONAL PARLIAMENTS IN THE REFORM OF EU MIGRATION, ASYLUM AND EXTERNAL BORDER CONTROL POLICIES IN 2015-2020 The article tries to describe and explain the change in the involvement of national parliaments in the process of reforming the EU’s migration, asylum and bord control policies in the years 2015-2020. The research continues the threads that author have presented in the article entitled The involvement of national parliaments in 2015–2017 in actions to overcome the immigration crisis in the EU published in 2018. However, this analysis was mainly exploratory and descriptive. Therefore, by using a hypothetico-deductive method and drawing from observations about the activity of parliaments in using the treaty and non-treaty tools available to them, as well as from the conclusions about their involvement in the reform of migration, asylum and border control policies in 2015-2016, two hypotheses are tested: H1. The instrument of political dialogue was used more frequently by national parliaments during the 2020 reform than during the 2015-2016 reform; H2. Those parliaments that actively used treaty-based instruments in 2015-2016 were more likely to submit opinions on documents regarding the reform of asylum and migration policy after 2020. The results obtained show a decline in the involvement of parliaments measured by the number of political dialogue opinions sent to the EU institutions and the intensity of discussions in interparliamentary cooperation bodies. Nevertheless, the relatively large number of reasoned opinions under the subsidiarity control procedures, as well as the fact that new parliaments, which were not involved in issuing opinions on solutions regarding migration, asylum and border control policies in 2015-2016, allow us to ask new interesting research questions requiring further analysis.

A Normative View from the Periphery: Serbia and the EU Asylum Acquis

Abstract Since 2014, as part of the EU accession negotiations, Serbia is meticulously conducting legal, policy, and institutional reforms in order to align its asylum and migration law and policy with the EU acquis. At the same time, as a consequence of the European policies put in place since 2015 (fences, large-scale pushbacks), Serbia faces a high risk of becoming a buffer zone in between EU Member States Greece and Bulgaria (whence many refugees enter Serbia) and Croatia and Hungary (which many refugees seek to enter). While aiming to implement EU law as a candidate Member State, Serbia is simultaneously trying to avoid stronger migration pressure and becoming a hotspot which are the consequence of implementing the EU acquis. Caught between these two conflicting policy aims, Serbia is following the example of Greece in limiting migration pressure by keeping its asylum system dysfunctional, ignoring refugee needs and undermining refugee protection. The substandard character of the Serbian asylum system in practice (both when it comes to its slow and inefficient asylum procedure, limited access to legal aid and information, as well as when it comes to an unsustainable and dysfunctional reception and integration system) makes returns to Serbia a violation of European Human Rights law (i.a., ECtHR 21 November 2019, Ilias and Ahmed v Hungary, application no. 47287/15), while it also gives migrants and refugees a strong incentive to move on to the EU. This combination of formally adopting, but not implementing, the EU acquis will be analysed as a normative response to the perceived lack of legitimacy of the EU acquis, which uses the weak position of peripheral Member States like Greece and neighbouring countries like Serbia to impose a disproportionate burden on them.

How Do Crises Affect Policy Subsystems? The Evolution of Policy Core Beliefs in the EU Asylum Policy

AbstractCrises, shocks, and perturbations are frequently considered turning points in public policy literature. The Advocacy Coalition Framework has become one of the most employed policy process frameworks, focusing on policy subsystems, belief systems and shocks as one of the drivers of policy change. Relying on a network approach, this article aims at analysing the EU asylum policy by exploring the prioritisation of policy core beliefs before, during and after the so‐called refugee crisis. From a methodological perspective, discourse network analysis (DNA) is employed. The results show that the system of policy core beliefs has not stabilised in the aftermath of the crisis, implying a ‘conservative’ crisis response approach and short‐term effects on the policy subsystem. The innovation of this article stands on the theoretical–analytical elaborations of some crisis management and public policy literature core concepts and the empirical testing of said concepts through an original dataset with DNA.

Journalistic and reception mechanisms of remote threat domestication: EU asylum seekers in Israeli media

The current study reveals the mechanisms used by both media and news consumers for domesticating distant threatening events. To this end, the study applies thematic analysis to textual and visual content presented in media items (Study 1) and media content reception from the perspective of news consumers (Study 2). Study 1 sample included 209 Israeli media items in Hebrew, covering asylum seekers in Europe from 2014 to 2019. Study 2 is based on semi-structured interviews with 30 Jewish Israeli heavy news consumers. The study was inspired by framing, priming, and media reception theories. The findings revealed the following threat domestication processes: (1) double selection of threatening narratives by media gatekeepers and the audience; (2) simplification of the media narratives to basic “good vs. bad” stories for easy comprehension and extension by news consumers; (3) creation and reception of both immediate threat (violence and crime) and deferred threat (deterministic processes); and (4) generation of a wide range of emotions and emotional processing through double victimhood. The audience actively adds to the domestication of the content through extended hegemonic and negotiated readings, thus finally shaping the framing so that it comes closer to the local contexts and communicates with the consumers’ lives and perceptions.

“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.

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.

Multiple sources of right to an effective remedy in EU migration and asylum law: Towards common standards on judicial protection?

Along with the progressive insertion of the right to an effective remedy in instruments of secondary legislation in different sub-areas of EU migration and asylum law, the question of interplay between the right to an effective remedy guaranteed at the level of primary law (Article 47 of the EU Charter of Fundamental Rights) and secondary law has been gaining more and more importance for the determination of boundaries between matters covered by EU law and those governed by national legislation. The present contribution will seek to examine the interactions between Article 47 of the Charter and the relevant provisions of secondary law in the field of migration and asylum. It will demonstrate that despite dense codification of the right to an effective remedy in different instruments of secondary law, Article 47 of the Charter continues to play a significant role in the case law of the Court of Justice of the EU concerning procedural guarantees conferred upon migrants and asylum seekers. A particular emphasis will be put on the analysis of recent case law developments that reveal the potential of Article 47 of the Charter to serve as a main tool for readjustment of national procedural rules.

Mapping EU Externalisation Devices through a Critical Eye

Abstract The purpose of this article is to scope, map and critique EU externalisation devices in asylum law. The article first evaluates the internal dimension of externalisation in EU asylum law, with the Dublin system being an internal device of externalisation supported by the securitisation of asylum law. The article then maps EU border externalisation manifested in border violence and critically discusses judicial responses to it. Finally, the article scrutinises EU externalisation beyond its borders, as realised by the outsourcing of asylum responsibilities or border controls to non-European countries. EU externalisation is here studied in a multi-faceted way, taking stock of devices from across the spectrum of EU asylum law. It is argued that EU externalisation is wholly underpinned by a neo-colonial narrative of emergency and repulsion that is harmful to refugees as it does not sit comfortably with principles of refugee law or EU and international human rights law.

Has the war in Ukraine changed Europeans’ preferences on refugee policy? Evidence from a panel experiment in Germany, Hungary and Poland

ABSTRACT The Russian invasion of Ukraine in early 2022 resulted in the largest refugee crisis in Europe since WWII. Using a unique panel conjoint experiment on refugee policy preferences carried out in Germany, Poland and Hungary just before and after the onset of the war in Ukraine, we show a heterogenous response to the influx of refugees from Ukraine across the three countries: no change of policy preferences in Germany, moderate change in Hungary and a significant change in Poland. Our results have direct implications for the development of a common EU asylum policy, as even though the countries persistently diverge on the preferred mode of asylum seekers’ allocation, with Germans favouring relocation and Poland and Hungary the status quo, the results highlight the scope for consensus rooted in shared preference for the asylum seekers’ unrestricted access to the labour market. This dimension consistently emerges as the most important policy dimension in all three countries before and after the outbreak of war.

‘Judicial Passivism’ in EU Migration and Asylum Law Revisited

‘Judicial Passivism’ in EU Migration and Asylum Law Revisited

France’s Migration Policy under President E. Macron: A European Dimension

This article explores the current approach of France to the issue of regulating migration in the context of Emmanuel Macron’s European diplomacy. Today the French government believes that taking part in the elaboration of a common EU migration and asylum policy is a necessary addition to the measures at home, paying particular attention to this topic since 2017. On the basis of public speeches, international documents and the elements of comparative analysis, the article summarizes the main initiatives put forward by France at European level and the challenges they faced. It points out that a part of Emmanuel Macron’s proposals regarding the governance of the Schengen area and the strengthening of the external borders control was implemented to some extent (taking into account the buildup of border capacities or the establishment of the “Schengen Council”), even if these proposals did not fully correspond to his initial project. On the contrary, France’s bilateral relations with its major neighbors (Germany, Spain, the United Kingdom or Italy) demonstrated a generally controversial dynamics because the partnerships on migration issues clearly depended on the political parties in power. In this regard, Italy, with the pro-European periods quickly followed by sovereignist shifts, looks like a particularly illustrative example. Moreover, numerous steps proposed by Paris to deal with the migration fl ows outside Europe often lacked any details and common ground with the partners. This is particularly noticeable in the African direction where French eff orts, from settling regional confl icts to restoring dialogue with Maghreb countries, produced insuffi cient results. The article concludes that from 2017 to 2023, France continued to seek balance between “responsible” and “solidarity-based” approaches to migration policy at the European level, and this would be the case until the end of current presidency. Yet, in 2027, the situation could change according to ideological preferences of Macron’s successor.

Voter Preferences for EU Asylum Policies: The Role of Government Cues

AbstractWe study whether and how governments influence public opinion about immigration policies in Europe. At the European level, conflicts about policy are generally territorial in nature – that is, they involve conflicts between member states, which are represented by their governments. Distinguishing between four types of situations, depending on whether the national governments support or oppose EU policy proposals, we formulate and test hypotheses concerning the positions of incumbent and opposition voters/non-voters on four different asylum-policy proposals in 16 European countries. We test both direct effects of incumbent cues on voters' preferences, and moderating effects, where the cueing affects the way in which individual attitudes to immigration and European integration translate into specific preferences for EU asylum and immigration policies. Our results suggest that voters, indeed, follow the cues provided by their governments when forming their preferences on EU policies.

The Road Not Taken

Many asylum cases present an opportunity for the European Court of Justice to promote and protect EU values such as human rights and the rule of law. Yet, in central issues on the EU asylum system, the Court has opted for careful and formal readings of law rather than exploring such perspectives. The Court’s legal reasoning in asylum is examined by case analyses in NF v Council on the EU-Turkey Statement, X and X on humanitarian visas, and A.S. and Jafari on the EU asylum system. In free movement, the Court is considered a key driver of integration, whereas, in asylum law, it is seen as more restrictive. Rather than promoting EU integration and ensuring human rights protections, the Court grants discretion to the legislator or the executive. There are legitimate reasons why a different path has been taken in asylum. However, as a more extensive and dynamic method of interpretation could increase human rights protections, it is relevant to reassess the position of the Court in asylum law.

Principle of non-refoulement in the context of recent ECtHR caselaw and the EU migration and asylum pact

Principle of non-refoulement in the context of recent ECtHR caselaw and the EU migration and asylum pact

Questioning legal personhood: a critique of the legal and jurisprudential underpinnings of EU immigration and asylum law

AbstractUsing the lens of immigration and asylum, this Article develops a new understanding of legal personhood on the basis of equal human dignity, as the interface between legal personhood, equality and human rights, in order to address the dual-faceted and opposing reality of immigrants and asylum claimants in relation to their equality as humans in the order of nature and their inequality within the social/political order of Europe, where they are subjected to a constant process of depersonification and reification. This reformulated approach to legal personhood not only seeks to remove the debasement and dehumanisation that has come to characterise European Union (EU) immigration and asylum law but also intends to address the limitations of the Common European Asylum System (CEAS) as a valid platform for translating the EU’s own self-proclaimed commitment to human rights into justiciable normative claims.

“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.