Taking Rights Half-Seriously: the new EU asylum laws

Goldner Lang, Iris, Human Rights and Legitimacy in the Implementation of EU Asylum and Migration Law, In Silja Vöneky and Gerald L. Neuman (eds.), Human Rights, Democracy and Legitimacy in a World of Disorder, Cambridge University Press, 2018, pp. 234- 262.

This text discusses the 2015/2016 crisis regarding the mass inflow of refugees into Europe caused by turmoil in Africa and in the Middle East. It suggests that the existing and newly adopted EU migration and asylum measures and policies may not only jeopardise asylum seekers’ rights, but also destabilise the EU regime of fundamental rights and lead to a changed paradigm of EU law.

European Constitutional Law Review , 2021

EU values-Rule of law backsliding-Rule of law and fundamental rights interrelation-Refugee protection-Common European Asylum System-Implementation gap in asylum-Lack of fair responsibility sharing in asylum-Structural deficiencies in national asylum systems-Defiance of asylum obligations and the duty of sincere cooperation-Systemic fundamental rights violations-Upholding the rule of law-European Asylum System redesign-Systemic infringement actions-Rule of law monitoring

Pressure on national asylum systems due to increasing numbers of asylum seekers and the opening of internal borders have led to cooperation at a common level since 1980. However, the EU laws and policies on asylum have mainly focused on the reduction of asylum claims rather than creating a fair and accessible asylum system. This has raised a concern whether it is compatible with the commitment of the EU to protect the right to seek refugee status within its territory. The main aim of this dissertation is to analyse the EU common asylum policy and its compatibility with the right to seek asylum under the Universal Declaration of Human Right. To this aim, after describing and analysing on the international protection regime and its limitations for refugees, the thesis will extensively examine the EU asylum policy and its restrictive policies. These restrictive policies under the non-arrival and non-admission policies such as visa requirements, carrier sanctions, the safe third country concept and readmission agreements are aimed at preventing asylum seekers from arriving at EU territory and from accessing asylum determination procedures. In analysing these policies, this thesis will demonstrate how the EU has developed strict policies to be protected from refugees entering its territory and undermined the right to seek asylum and its non-refoulement obligation. This thesis therefore, suggests that the EU should support and encourage stability and the development of refugee-producing countries rather than focusing on discouraging asylum seekers with restrictive policies.

in D. Kostakopoulou and N. Ferreira (eds), The human face of the European Union: Are EU law and policy humane enough (CUP, forthcoming)

The Evolution of EU Law, 2021

In the following sections, we explore evolution and stasis in EU asylum law and policy. We identify two tensions at the heart of the CEAS, between the commitment to protection and deflection of protection obligations, and between internal mobility within the EU and the immobilization of asylum seekers and refugees. We note the role of these foundational tensions in generating and exacerbating the ‘refugee crisis’ of 2015/16. This chapter is premised on a widely-shared understanding of the role of EU asylum policy in that crisis, namely that by illegalizing the travel of asylum seekers and refugees in search of protection, it contributes to the dangerous mass flight, which in turn generates humanitarian and political crises. We then analyse four key dimensions of EU asylum policy in light of these tensions: access to asylum, responsibility-allocation, legislative harmonisation, and institutionalised practical co-operation. Across these four fields, we identify the limits of EU law, and its general stasis, in spite of changes in Treaty telos, law-making processes, and EU enlargement. We briefly consider the role of the CJEU, still very much in the shadow of the ECtHR in asylum, in spite of its numerous rulings on the CEAS. Overall, we demonstrate its fairly minimalist approach in this area, avoidance of controversial cases by dubious use of inadmissibility findings, and failure to catalyse policy changes. Against this backdrop of legislative, political and judicial caution and inertia, we identify two key trends: a move towards greater institutional cooperation, including through the creation of a dedicated agency, the European Asylum Support Office (EASO), and a general flight from law in this policy field. We conclude by considering the likely impact of these trends on EU asylum law.

The present volume is the second published for the CLEER working papers series and under the CLEER research project “Human Security as a new operational framework for enhancing Human Rights protection in the EU’s Security & Migration Policies”. In the framework of activities carried out under the aforementioned research project, a group of experts were asked to consider the extent to which the concept of human security could influence the response of the EU to humanitarian crises. This volume builds upon the conference organised by CLEER on the 4th of July 2014 and aims to address a number of questions pertaining to the application of the Common European Asylum System (CEAS). Whilst the conference considered the role that the concept of human security might play in the development of the CEAS and the application of legislative instruments thereof so as to maximise the level of protection and the rights of asylum seekers, the reader will find that human security considerations are often translated into human rights ones, a terrain in which lawyers are more familiar with. Yet, the concept of human security permeates through the whole volume since each contribution discusses the necessity to consider the protection needs of asylum seekers into the analysis and application of the CEAS acquis.

The presumption that all EU Member States are safe countries of origin constitutes a vital part of the self-image of the European Union. Consequently, the possibilities open to an EU citizen seeking asylum in another EU country are limited. The human rights record of certain Member States, however, reveals that for some of their citizens this image is not a true representation. Perhaps the most obvious example, though not the only one, is the plight of the Roma minority. Based on an analysis of the right to asylum and its limited scope within the EU context, this article contends that the predicament of the Roma, as well as recent political developments in Europe (where in certain countries the rule of law and fundamental rights have been constrained), provides grounds for challenging such a presumption of safety and for recognizing that EU citizens could have valid claims for protection. The article goes on to explore various alternatives for safeguarding EU citizens. It asserts that recent case law of the European Court of Human Rights and the European Union Court of Justice on third-country nationals in so-called Dublin cases opens up fresh possibilities for asylum claims by EU citizens to be assessed thoroughly rather than being routinely dismissed as ‘manifestly unfounded’.

2016

The European Union is confronted with a deep migration crisis, at a time when the EU has changed from being a source of stability and security into becoming a generator of political instability and economic chaos. This chapter outlines the main parameters of Europe’s immigration issue and the right of asylum. It presents the European migration policies of the last decade and traces the reasons behind its complete or near failure. The European Union takes into account how to rid itself of migrants through certain measures of tightening the law on asylum, and closing the borders. The result is that those states which had most fought against borders and walls and were committed to them being permanently eliminated, are now rushing to raise them again. Meanwhile, the security threat that has increased across the whole Union due to the mismanagement of migration. The European Union has spent years developing the Common European Asylum System (CEAS). The aim of CEAS is to ensure the rights of asylum seekers by law. The system establishes minimum standards and procedures for processing and assessing claims for asylum and for the treatment of asylum seekers and those granted refugee status. Nevertheless, a large number of EU member states have yet to correctly implement these standards. Instead there is a collage of 28 different asylum systems producing uneven results? Finally, this chapter examines the EU asylum system itself. The chapter analyses how national asylum systems interact under the law of the EU, applying the criteria of the distribution of state responsibility to investigate asylum applications. This chapter addresses two key concepts in the development of European asylum law in particular: the concept of solidarity and the concept of trust, the application of which has been demonstrably weak in the European Union asylum system.

At the occassion of the 10th anniversary of the EU's human rights catalogue being in force, this article assesse its relevance in practice.

International Migration 57(1), 229-244, 2019

The Asylum Procedures Directive, which was put in place in the context of the Common European Asylum System, is expected both to harmonise asylum procedures in the European Union and to safeguard applicants’ rights. This article explores various steps in the implementation of the directive, starting with transnational negotiations which aim to influence domestic asylum policies. Focusing on the asylum systems in Germany and Sweden, the article shows that the way decision makers implement the directive is shaped by diverging domestic asylum policies. The risk of failing common standards, however, is not only a matter of implementation, but inherent in the directive’s design. Furthermore, harmonisation does not necessarily improve compliance with the principles of international refugee law. Safeguarding protection seekers’ rights requires rethinking both asylum legislation and the role of the actors who intervene in its implementation.