The Reform of the Common European Asylum System: Between Recast and New Regulation

By Salvatore Nicolosi

Twenty years after the European Council of Tampere that in 1999 set out the political roadmap to establish a Common European Asylum System (CEAS), the European Union and its Member States still struggle to design a solid and future-proof system. The migratory pressure on the EU increases the need for effective responses. With more than 1 million people reaching Europe in 2015 and more than 18,000 drowning at sea in the period between 2014 and 2019, a solid asylum system becomes all the more urgent. 

The reform of the CEAS certainly constitutes a relevant context to reflect on the dynamics of regulation in a particular sensitive area of European integration. Nonetheless, a closer look at the ongoing reform illustrates how this lays behind the actual way forward to the realisation of the goals established in Tampere twenty years ago.

Unfolding the Reform of the Common European Asylum System

In an attempt to tackle the structural shortcomings of the CEAS particularly exacerbated by the migratory pressure of 2015, the European Commission adopted two packages of proposals. A first package adopted on 4 May 2016 comprises the proposals to recast the Dublin Regulation (COM/2016/270), Eurodac Regulation (COM/2016/272) and a proposal aimed at establishing a EU Asylum Agency (EUAA) that will replace the current European Asylum Support Office (EASO) (COM /2016/271). A second package of reform was adopted on 13 July 2016 and includes a proposal for a Regulation repealing the Qualification Directive (COM/2016/466), a proposal for a Regulation repealing the Procedure Directive (COM/2016/467), a proposal to recast the Reception Directive (COM/2016/465) and a proposal for a Regulation establishing a EU Resettlement Framework (COM/2016/468). Provisional compromises have been concluded between the Council Presidency and the European Parliament’s rapporteurs on five of the seven proposals. As has been emphasized (ECRE 2018:3), this is a remarkable progress, especially if compared to the first (1999-2005) and second phase of harmonization (2009-2013) which in both cases took five years to conclude. Nonetheless, such an optimistic view is to be resized by contextualizing the process of reform within the wider political crisis contaminating the whole EU fabric (Joannin 2018).

On a whole, the new regulatory framework of the CEAS can be divided into two parts: on the one hand, a set of proposals aims to recast already existing instruments and, on the other hand, a set of proposals introducing new complementing instruments, such as the EU Resettlement Framework and, to a certain extent, the new EU Asylum Agency. 

The priorities of the new regulatory model 

The reform of the CEAS essentially builds on two priorities: 1) an emergency-focused approach to cope with migratory pressures and 2) further harmonisation, which is another crucial aspect of the current reform. 

Admittedly, the emergency-focused approach is visible in the recast proposal of the Dublin Regulation. The main novelty is the “corrective fairness mechanism” designed to relieve overburdened States by relocating asylum seekers to other Member States. The mechanism would be automatically triggered as soon as the applications falling under the responsibility of a Member State would exceed 150% of its fair share, which is calculated on the basis of its population and GDP, and operate until applications fall below the 150% threshold. Nevertheless, the Member State that would benefit from relocation still has duties concerning the registration of applicants and other pre-checks formalities (Maiani, 2017). The European Parliament made a significant contribution to the reform suggesting valuable amendments (Wikström Report). This is the first version of Dublin which shows sensitiveness about applicants’ integration potential, in that it envisages that applicants, who have family members or who have links with a particular member state for example after having had a prior residence or having studied there shall be relocated to these member states. The relocation system is supposed to work routinely and regardless of a particular situation of emergence and with no thresholds as suggested by the European Commission.

In view of fostering further harmonisation, two Regulations are proposed repealing the current Qualification Directive and Procedure Directive respectively. This is a relevant innovation, as the regulation compared to the directive has the advantage of direct applicability, thereby providing for enhanced harmonisation in the field. However, despite such a formal change, the proposals offer at best a mere window dressing of the existing directives. As has been emphasised, the effectiveness of Regulations also depends on their concrete application by national authorities, depending on the domestic administrative capacities and the actual circumstances on the grounds (Thym 2017). Moreover, the presumption of uniformity that these regulations are supposed to provide is undermined by the difficulty to fully harmonise the reception conditions. The transformation of the Reception Directive into a Regulation proved difficult, if not impossible, due to the social and economic differences across Member States. This definitely remains one of the main challenges for the CEAS for which uniform reception conditions could be the main guarantee for a long-term sustainability of the whole system. 

A new legal design?

Apart from reconfiguring existing instruments, the reform of the CEAS reflects to a certain degree some new legal design. This is more visible in the new set of measures proposed to enforce the implementation of the asylum acquis on the one hand, and introduce new regulatory measures, such as resettlement programme. As regards the first aspect, the establishment of a fully-fledged EU Asylum Agency can be seen as a natural consequence of a process that has over the year expanded the role of the existing EASO (Scipioni, 2018).

While this new legal design is functional to a strategy conceived to assure a higher degree of implementation, some concerns arise.  In particular, while de jure the Agency is supposed to assist Member States in examining asylum claims, the recent involvement of EASO in Greek Hotspots  confirms the Agency’s overstepping of its operational powers with Greek Asylum Officers which adopt decisions which are only formally national while substantially elaborated by the EASO (Fernández Rojo, 2018).  

A new legal design is reflected also in the proposal for a permanent EU resettlement framework. The proposal rests on the idea of “third country’s effective cooperation with the Union in the area of migration and asylum.” Such a regulatory model aims to introduce conditionality criteria, based also on the relevance of a particular country for the EU foreign policy. This may dangerously conflate the humanitarian reasons beyond the international protection policy with the fight against irregular migration.

Concluding: The Missing Tile in the Reform of the CEAS

Taking a holistic approach to the analysis of the reform, one may note that it does not depart from the general paradigm of preventing secondary movements that over the years has proved practically ineffective. While some elements, including the emphasis on further harmonization or the establishment of a Union Resettlement Framework, constitute an added value, it seems the whole reform misses the opportunity to realise one of the goals established in Tampere twenty years ago.

In endorsing the political roadmap to develop the CEAS, the Tampere Conclusions established as long-term goal “a uniform status for those who are granted asylum valid throughout the Union.” This aim became a clear obligation in the letter of Article 78 (2) TFEU. Such a status would entail the mutual recognition of positive asylum decisions (ECRE, 2014), a circumstance that the current reform of the CEAS does not provide, despite being the third phase of regulation.

Despite the potential that mutual recognition of positive asylum decisions can play in fostering the integration of recipients of international protection, the ongoing reform reiterates an approach which limits the integration potential of beneficiaries of international protection. The essential machinery of the CEAS reform reproduces a set of punitive features specifically designed to ensure compliance with the obligation for the asylum seekers to apply and stay in the first Member State of entry or the Member State that granted protection. The reform does not clarify what rights or entitlements a recipient of international protection might enjoy in another Member State. The protection status still links the beneficiary with a single Member State. Such a circumstance is not only undesirable because it frustrates the integration potential of recipients of international protection, but it also impairs the essence of mutual recognition as a catalyst of trust and clashes with the authentic and teleological interpretation of Article 78. 

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Salvatore Nicolosi

Over Salvatore Nicolosi

Salvo Nicolosi is Assistant Professor in European and International Law at Utrecht University Law School, where he is also a Researcher within RENFORCE. In his research Salvo combines expertise in the domains of European law, international human rights law and international refugee law, with particular attention to the development of the Common European Asylum System. He examines the EU institutional, law-making and enforcement dynamics in the context of asylum and migration and the relationship between the EU asylum legislation and the main international human rights legal instruments, including the 1951 Geneva Convention on the Status of Refugees and the 1950 European Convention on Human Rights.