To what extent has the Common European Asylum system been able handle the Syrian refugee ...

74 Pages·2017·0.61 MB·English

by  Ivonna Beches

"To what extent has the Common European
Asylum system been able handle the Syrian
refugee crisis?"

Ivonna Beches
Student Number: 2007051
European and International Law
Faculty of Law, Tilburg university, The Netherlands
June 2017
Table of Contents
Introduction.........................................................................................................................page 3
Chapter 1.............................................................................................................................page 11
Chapter 2.............................................................................................................................page 33
Chapter 3.............................................................................................................................page 48
Chapter 4.............................................................................................................................page 57
Conclusion..........................................................................................................................page 64

2
Introduction

The 1951 Geneva Convention Relating to the Status of Refugees forms the starting point and the
main point of reference for any discussion about asylum seekers' and refugee rights1. It covers
information relating to what individuals qualify for refugee status and under what circumstances
as well as what rights they are subsequently entitled to by virtue of their status. It does not
however, provide any information about protection in situations where persecution is not an
issue, or relating to the procedures required in order to provide asylum to applicants, issues
which are largely left to the discretion of states implementing the Convention.
To this end, the concept of a clear, uniform system of asylum rights and procedures slowly
became a serious topic of discussion within the EU. The Maastricht Treaty of 19922 marked the
first step towards the incorporation of immigration and asylum into EU treaties, spurred on by a
realization that a move towards a Single Market within the European Union, which included the
abolishment of internal borders, might create a phenomenon of asylum shopping whereby
asylum seekers would be able to travel unchecked once they entered the territory of the EU and
specifically seek out asylum in the Member states with the most generous reception procedures.
As a result, the Tampere programme was introduced in 1999 – a five-year programme aimed at
establishing a roadmap for political priorities and asylum-related policy programmes3. It was at
the Tampere summit that the European Council also made clear the ambition to create a
Common European Asylum System (CEAS), meant to include rules on the determination of

1 UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty
Series, vol. 189, p. 137
2 European Union, Treaty on European Union (Consolidated Version), Treaty of Maastricht , 7 February 1992,
Official Journal of the European Communities C 325/5; 24 December 2002
3 European Union: Council of the European Union, Presidency Conclusions, Tampere European Council, 15-16
October 1999, 16 October 1999
3
responsibility for asylum applications, the qualification of applicants for asylum protection,
asylum procedures, and reception conditions. Furthermore, it was decided that CEAS would be
constructed in two stages, the first establishing a set of instruments prescribing minimum
standards, allowing Member States to retain national procedures and interpretations of certain
concepts, while the second restricted the discretion offered to Member States, with the aim of
creating common standards and a uniform asylum status.
Thus the Common European Asylum System, a series of Directives and Regulations on asylum,
was presented by the European Commission to the Council, although the negotiations made this
process longer and more arduous than the initial proposals made by the Commission.
The first stage of CEAS took place in the period between 2001-2005, focused on laying down a
mechanism for allocating asylum seekers between Member States, minimum reception standards,
minimum standards for asylum procedures and minimum standards for granting asylum4. Several
Member States were anxious about the possibility of the Community encroaching on their
domestic asylum procedures and as a result, the proposals made by the Commission for this
initial stage of proceedings were significantly downgraded in a manner that reduced the level of
harmonization originally envisioned.
The second stage focused on the further development and upgrade of the instruments introduced
by the first stage, and was put into motion in 20085. Following the entry into force of the Lisbon
Treaty in 2009, Article 78 of the TFEU6 was introduced as the legally binding basis for the

4 Lodder G. , Boeles P. , de Heijeer M. European Migration Law 2014 (2nd edition, Intersentia Ltd, Cambridge)
5 ibid
6 European Union, Consolidated version of the Treaty on the Functioning of the European Union, 13 December
2007, 2008/C 115/01
4
common asylum policy. Unlike previously, this provision no longer requires the implementation
of minimum standards, but rather calls for "uniform statuses" and "common procedures"7.
However, although the CEAS rules are part of the legal order of the European Union, and as such
are an integral part of the Member States' legal systems, there has been great difficulty in creating
a fully harmonized asylum system. What this generally means is that most instruments still leave
considerable discretion for Member States to organize their asylum systems as they wish, thus
placing limitations on the possibility of having a unified regional system.
Nonetheless, the asylum system created by aforementioned measures has set out a clear set of rules
which Member States are theoretically bound to follow in situations where they have to provide
asylum. There are minimum procedural standards relating to the right to have an asylum claim
processed as well as a right to be granted refugee status or subsidiary protection, subject to the
applicant meeting the required conditions. Moreover, the common set of rules has significant
influence over the manner in which the Refugee Convention is interpreted as well as offering the
Court of Justice the opportunity to develop the sytem through interpretive jurisprudence, thus in
turn further informing the conduct of Member States in this field8.
This thesis will be considering the developmental background of the CEAS in order to explain
how and why it was created. To this end, it will consider the process of negotiations which
preceded the CEAS, introduce and briefly analyze the legal basis of the system, then consider the
regulations and directives that comprise it. That is to say, the first section of the thesis will look at
the relevant articles present in the TFEU, then measures adopted on the basis of this legislation,

7 European Union, Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the
European Community, 13 December 2007, 2007/C 306/01
8 Lodder G. , Boeles P. , de Heijeer M. note 4, pg 247
5
namely, the Temporary Protection Directive9, the Reception Conditions Directive10, the Dublin
Regulation11, the Qualification Directive12 and the Procedures Directive13. It will explain how
these instruments are interrelated and how the cooperate together to create the CEAS.
In order to incorporate a full analysis however, in the second chapter, the thesis will also consider
the general limitations of system, created by, as identified by Nancheva, a gap between policy and
implementation14. In other words, the analysis will attempt to explain the disconnect between the
European Union's commitment to equal treatment and the protection of asylum seeker's rights and
the ability and willingness of legislative institutions to make that commitment a reality. It will

9 European Union: Council of the European Union, Council Directive 20 01/55/EC of 20 July 2001 on Minimum
Standards for Giving Temporary Protection in the Event of a Mass Influx of Displaced Persons and on Measures
Promoting a Balance of Efforts Between Member States in Receiving such Persons and Bearing the Consequences
Thereof, 7 August 2001, OJ L.212/12-212/23; 7.8.2001, 2001/55/EC
10 European Union: Council of the European Union, Council Directive 2003/9/EC of 27 January 2003 Laying Down
Minimum Standards for the Reception of Asylum Seekers in Member States, 6 February 2003, OJ L. 31/18-31/25;
6.2.2003, 2003/9/EC and

European Union: Council of the European Union, Directive 2013/33/EU of the European Parliament and Council of
26 June 2013 laying down standards for the reception of applicants for international protection (recast), 29 June
2013, OJ L. 180/96 -105/32; 29.6.2013, 2013/33/EU
11European Union: Council of the European Union, Regulation (EU) No 604/2013 of the European Parliament and
of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State
responsible for examining an application for international protection lodged in one of the Member States by a third-
country national or a stateless person (recast), 29 June 2013, OJ L. 180/31-180/59; 29.6.2013, (EU)No 604/2013
12European Union: Council of the European Union, Council Directive 2004/83/EC of 29 April 2004 on Minimum
Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as
Persons Who Otherwise Need International Protection and the Content of the Protection Granted, 30 September
2004, OJ L. 304/12-304/23; 30.9.2004, 2004/83/EC and
European Union: Council of the European Union, Directive 2011/95/EU of the European Parliament and of the
Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as
beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary
protection, and for the content of the protection granted (recast), 20 December 2011, OJ L. 337/9-337/26
13European Union: Council of the European Union, Council Directive 2005/85/EC of 1 December 2005 on Minimum
Standards on Procedures in Member States for Granting and Withdrawing Refugee Status, 2 January 2006, OJ L
326; 13 December 2005, pp. 13-34 and

European Union: Council of the European Union, Directive 2013/32/EU of the European Parliament and of the
Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast), 29
June 2013, OJ L. 180/60 -180/95; 29.6.2013, 2013/32/EU
14 Nancheva N. "The Common European Asylum System and the Failure to Protect: Bulgaria's Syrian Refugee
Crisis", Southeast European and Black Sea Studies, Vol 15, Issue 4, 2015, 439-455, 440
6
argue, generally speaking that better harmonization would resolve some of the issues faced both
by the system itself and by Member States in their attempts to implement it.
The four general limitations considered in this chapter are the tenuous balance between internal
security and respect for human rights, the clash between national and supranational governance,
the failure of CEAS to create a system of solidarity and fair-sharing of responsibility, particularly
when considering the Dublin Regulations, and the failure of Member States to adhere to European
standards through the externalization of the asylum process and a "race to the bottom" approach
to the provision of rights and resources to asylum seekers15. Finally, the chapter will round off by
considering how these shortcomings affected the first and second phases of CEAS in turn. By the
end of this chapter, part of the research question identified above will be answered, as the
underlying weaknesses of the system which preceded migrant crisis will have been identified.
The discussion will then move on to the central issue of the thesis, namely how well the CEAS
responded to the strains placed on it by the Syrian Refugee and Migrant crisis in the years
following the completion of its initial development, specifically in the period between 2014-2016.
The European migrant or refugee crisis refers to the phenomenon which began during the
aforementioned period when an increasing number of individuals, of which a considerable number
were asylum seekers, arrived into the EU, travelling primarily through Southeastern,
Mediterranean European states. The bulk of the migrants and asylum seekers were of Syrian origin,
as a result of the ongoing civil war in Syria which had begun in 2011, but intensified considerably
in 2014. In 2015, the number of persons seeking international protection reached a level that had
not been since World War II. First time applications for international protection lodged in the 28

15 Jesuit Refugee Service Europe, "The CEAS Reform Package: the death of asylum by a thousand cuts?" Working
Paper 6, January 2017
7
EU Member States hit approximately 1.3 million, double the amount the states had received in the
previous year16.
As levels of immigration reached a peak in the summer of 2015, EU Member States found it
increasingly difficult to cope with the numbers and the procedural strain of assigning refugee status
or subsidiary protection to all applicants as well as relocating them as prescribed by CEAS
regulations. The possibility of providing a harmonized asylum procedure and providing reasonable
reception conditions were heavily tested in more than one European country as unprecedented
numbers of seekers of international protection arrived on European territories. In addition, only a
few select countries received the bulk of asylum applications thus further testing the ability of the
system to relocate individuals. Some measures were specifically implemented during this period
to attempt to cope with the crisis, such as setting up reception centers at external borders and
placing an emergency relocation mechanism into effect, but they had limited success and,
unfortunately, similarly to the other regulations and directives that make up the broader system,
ultimately failed to adequately account for the unique issues posed by the crisis.
The thesis will seek to address the extent to which the system failed to fulfill its purpose, as well
as identify and explain possible reasons as to why this happened. The underlying research question
that the thesis will seek to answer is whether the system could not cope with the crisis because of
issues present before its occurrence, or whether the crisis in and of itself was of such a nature that
the system could not have been tailored to prevent it.

16 Migration Policy Institute, "Moving Europe Beyond Crisis" http://www.migrationpolicy.org/programs/moving-
europe-beyond-crisis?gclid=CjwKEAjw4IjKBRDr6p752cCUm3kSJAC-eqRt1O5s7dK2nLrtAQ4l0HGwzl2tzOR-
VNbsG9i2CVALdBoCOM_w_wcB [last accessed 15 June 2017]
8
This first part of this chapter will explain the failure of CEAS during this period using specific
state examples, namely the deterioration in reception conditions in Italy and Greece, the decision
of Germany to suspend the use of the Dublin III regulation and the impact this had on the overall
system and the situation in Bulgaria and its inability to deal with the crisis.
The second part of this chapter will consider the responses taken by the EU in an attempt to
ameliorate the damage done by the crisis, starting with the relocation of refugees and ending with
the Turkey-EU joint action plan and statement17.
This chapter will seek to further strengthen the argument that the existing shortcomings of the
system were ultimately the cause for its failure during the crisis.
The underlying question that will be answered by this section is whether the system could not cope
with the crisis because of issues present before its occurrence, or whether the crisis in and of itself
was of such a nature that the system could not have been tailored to prevent it.
Following the conclusion of the previous section, the thesis will go on to consider how the issues
within the system could have been addressed at the time, as well as how the system can evolve and
improve going forward. It will specifically analyze in the final chapter, the proposals for a second
reform or third phase of CEAS which have already been released and conclude whether they are
truly a step in the right direction towards a more unified, better constructed system, or whether
they are simply surface level changes that fail to address the issues exposed by the migrant crisis.
With regards to methodology, the focus will be entirely on black letter, as the thesis will utilize
the legislation relating to and forming a part of CEAS, in conjunction with relevant case law from
the Court of Justice for evidence of interpretation and domestic courts for specific evidence of

17 European Union: Council of the European Union, EU-Turkey statement, 18 March 2016, 18 March 2016
9
implementation. Moreover, the thesis will include the opinions of various legal academics and
scholars in order to drive the direction of the argument and analysis before coming to its own
conclusions in each section.

10