What needs to be done with the European asylum system?

Francesco Sorana
Photo by Maria Teneva on Unsplash
Published on December 20, 2019

The current situation revealed fundamental shortcomings in the functioning of the European asylum system, and in particular the Dublin Regulation, that undermine its effectiveness and do not ensure a sustainable sharing of responsibilities between European countries. The European Commission, the European Council and the European Parliament recognized in 2016 the need to reform the Common European Asylum System, the Eurodac system and the European Asylum Support Office (EASO). According to the proposal, the latter should become a European Asylum Support Agency responsible for managing migration throughout to and throughout the European Union, improving the functioning of the Common European Asylum System (CEAS). The most influential reform proposal to Dublin III in recent times has been the “Proposal for a regulation of the European Parliament and of the Council 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” proposed on 4/5/2016. The two concepts at the centre of the reform proposal are: subsidiarity and proportionality

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It is clear that the Dublin III regulation was not designed to deal with situations of disproportionate pressure. It does not guarantee fair sharing of responsibilities nor redirects the unequal distribution of asylum seekers. As mentioned earlier, the EU institutions have recognized the need for a joint response to migration flows, that affected in recent years more southern and eastern countries, because of the criteria of the “first country of entry”. So these countries had to take action individually, often trying to stop applicants arriving at the borders rather than welcoming them. The proposal should aim to achieve a more reasonable division of responsibilities between Member States and to ensure a redistribution of the burden among them. Furthermore, secondary cross-border movements of migrants and asylum seekers between Member States should be hindered by a more efficient and clear application of the Dublin Regulation, by harmonising differences in the quality of reception and asylum systems between Member States and by reforming the Eurodac system, allowing it to achieve greater effectiveness by becoming a database for all immigration purposes in the European Union and facilitating joint efforts to manage irregular migration. The second mission is to ensure a proportional and clear attitude towards the determination of the Member State responsible for examining a particular asylum application or to take charge of a specific migrant.

To ensure respect for the fundamental human rights of migrants and asylum seekers, and to respect the moral and legal obligations to which members of the European Union are called, Member States should include specific guarantees in the proposed reform. As proposed, inter alia, by the Office of the United Nations High Commissioner for Human Rights (OHCHR), Member States should decriminalise irregular migration and provide protection and regular status to those who cannot be repatriated. In addition, although in the near future it seems that repatriations will continue to be a policy of the EU, these must be carried out by all Member States in accordance with the human rights of the individual, in particular those ratified in Articles 2, 4, 6 and 19 of the Charter of fundamental rights of the European Union, namely the right to life, the prohibition of torture and degrading treatment, the right to freedom, and the principle of non-refoulement. To do so, every country has to change its own repatriation policies and practices, fulfilling the international European standards of human rights.

During the identification process, Member States should promptly provide special protection to persons in vulnerable situations, such as pregnant women and persons with physical or mental disabilities, and provide them with accessible health care in dedicated facilities. At the same time, migrants should have access to significant information about their legal situation, asylum, transfer procedures and rights with the help of lawyers and translators, in order to be able to take informed decisions. During the first steps on arrival and identification procedures, most migrants have been held for weeks or longer in immigration detention facilities rather than in reception centres, often without access to information, legal assistance and translators. This arbitrary, often illegal, detention should be replaced by alternative national plans based on respect for human rights rather than enforcement. Plans where migrants are not held in prison camps but in community-like facilities. This need rises from the fact that the conditions in which migrants are detained are often degrading and inhumane, in some countries more than others. Migrants are often more surrounded by armed police and barbed wire than helped and followed in the asylum procedures by qualified personnel, and do not have granted access to safe accommodation and a secure environment in which they can be able to satisfy their primary needs. Detention practices are particularly detrimental to migrant children who do not have assured access to education, health services and recreational activities, and live in inhospitable environments where their safety and well-being are at risk. Therefore, children should be guaranteed access to shelters designed for unaccompanied minors and families with children, where trained staff follows them and focuses on their legal and personal well-being at all stages of asylum procedures. The deprivation of liberty as an instrument to avoid the possible risk of fleeing of irregular migrants should be avoided and not arbitrary. In any case, it should respect the right to freedom established by Article 6 of the Charter of fundamental rights of the European Union, and should always be considered as a case-by-case resolution rather than a standardized practice.

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The effective respect of the European Union in relation to human rights and international provisions will be measured in the way in which migrants, asylum seekers and refugees will be treated by Member States. The legitimacy of the European project will depend on the internal and community responses that will be given to tackle the issue of migration to European countries and in the capacity to redirect national policies towards a joint and shared responsibility, that focuses first of all on the respect for fundamental human rights and on the moral imperative of preventing the death of human beings that could be saved through a resolute and cooperative effort. If the member states and the European Union as a whole will be able to guarantee the respect for the principles on which the European identity is founded, in addition to a better approach to immigration which will guarantee better results over the medium and long term, it will also reaffirm the legitimacy of the European Union as an international actor that upholds humankind and supports the priority of human life over economic interests and political ideologies.

Bibliography: 

United Nations Human Rights “In Search of Dignity: Report on the Human Rights of Migrants at Europea’s Borders” (2017). https://www.ohchr.org/Documents/Issues/Migration/InSearchofDignity-OHCHR_Report_HR_Migrants_at_Europes_Borders.pdf

European Union Agency for Fundamental Rights Report  “FRA Opinions” (2018). https://fra.europa.eu/en/publication/2018/fundamental-rights-report-2018-fra-opinions

Proposal for a regulation of the European Parliament and of the Council 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) – COM/2016/0270 final/2 – 2016/0133 (COD) | https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016PC0270%2801%29

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