THE EUROPEAN UNION ASYLUM POLICY AFTER THE TREATY OF LISBON AND THE STOCKHOLM PROGRAMME: TOWARDS SUPRANATIONAL GOVERNANCE IN A COMMON AREA OF ...
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THE EUROPEAN UNION ASYLUM POLICY AFTER THE TREATY OF LISBON AND THE STOCKHOLM PROGRAMME: TOWARDS SUPRANATIONAL GOVERNANCE IN A COMMON AREA OF PROTECTION? Christian Kaunert and Sarah Léonard* Cooperation on asylum has significantly developed amongst the European Union Member States in recent years. This is remarkable given the sensitivity of asylum matters, which are inherently highly political. All the articles presented in this special issue aim to capture some aspects of the European Union fast changing asylum policy following the entry into force of the Treaty of Lisbon and the adoption of the Stockholm Programme in December 2009. The special issue examines the impact of these changes on asylum governance in the European Union, in particular whether, as a result of these changes, we can observe an increase in supranational governance in a policy area that was traditionally intergovernmental, with a strong focus on na- tional sovereignty. As the articles in this special issue demonstrate, there have been many changes in the European Union polity, which European Union institutions have exploited by providing European Union legislation. As a result, there has been an important increase in supranational governance and significant steps have been taken towards establishing a “ Common Area of Protection” . However, asylum mat- ters are not governed supranationally yet. Actually, there is still a considerable way to go before all the objectives set in the area of asylum are fully met. Keywords: European Union, asylum policy, Treaty of Lisbon, Stockholm Programme 1. Introduction Asylum-seekers and migrants have been the object of heated debates in Europe over the past few years. This was again particularly evident in the wake of the so-called Arab Spring when the governments of several European Union (EU) Member States expressed concerns at the increase in migration flows from North * Christian Kaunert is Marie Curie Research Fellow at the Robert Schuman Centre for Advanced Studies, European University Institute, Florence (Italy) and Senior Lecturer in Politics and International Relations at the University of Dundee (United Kingdom). Sarah Léonard is Marie Curie Research Fellow at the Centre for European Studies, Sciences Po, Paris (France) and Lecturer in Politics at the University of Dundee (United Kingdom). Research for this article was supported by two Marie Curie Intra-European Fellowships within the 7th European Community Framework Programme. Refugee Survey Quarterly, Vol. 31, No. 4, pp. 1–20 ß Author(s) . All rights reserved. For Permissions, please email: firstname.lastname@example.org DOI:10.1093/rsq/hds018
2 Christian Kaunert and Sarah Léonard j EU Asylum Policy Africa. Talks of a migration and asylum “crisis” in some European States culmi- nated in a public row between the French and Italian Governments and a tem- porary re-introduction of border controls at the French–Italian border in spring 2011. More generally, asylum and migration have often been key themes in electoral campaigns in recent years, such as in France in 2005 when the then Interior Minister Sarkozy promised to “clean” an estate – mainly inhabited by persons of foreign descent – “with a Kärcher”.1 In addition, controversies around asylum and migration have led some Member States to engage in a virtually continuous reform of their asylum and migration legislation. With some modest exceptions, the overwhelming majority of policy initia- tives have aimed to reduce flows of migrants and asylum-seekers into the EU. As noted by Gibney with specific regard to the issue of asylum: Few people could be unaware of the way willingness to implement tough measures on asylum has become a touchstone for Western governments of all hues recently. Buoyed by rising numbers of asylum seekers since the early 1980s, as well as widespread public concern over illegal migration, govern- ments in countries as different as Germany and Australia, the US [United States] and Ireland, and Italy and the UK [United Kingdom], have imple- mented a raft of measures designed to make life very uncomfortable for those applying for asylum. 2 In order to prevent or dissuade people from migrating, States have taken a wide array of legislative measures to reduce access to their territory, such as visa policies and carrier sanctions. They have also generally sought to reduce the entitlements of the migrants and asylum-seekers who are on their territories with regard to access to the labour market or social benefits, for example. Moreover, such legislative changes have been accompanied by an increase in the budgets devoted to migration controls in several Member States. Those have invested vast amounts of money into sophisticated technologies in order to strengthen migration controls. One example is the electronic tagging of asylum-seekers in the UK, which aims to prevent people from “absconding” during the processing of their asylum claim. Nevertheless, the most prominent illustration of this trend is certainly the acquisition of technological devices – including some originating from the military sector – in order to intercept migrants at border sites. Amongst those are mobile scanners, powerful surveil- lance cameras, thermal imaging equipment, and acoustic listening devices.3 Of particular note are also electromagnetic remote sensing devices, which can detect 1 “French Celebrities Desert Sarkozy in Wake of Attack on Urban Poor”, The Guardian, 23 Dec. 2005, available at: http://www.guardian.co.uk/world/2005/dec/23/france.topstories3 (last visited 20 Sep. 2012). 2 M.J. Gibney, “Beyond the Bounds of Responsibility: Western States and Measures to Prevent the Arrival of Refugees”, Global Migration Perspectives, 22, Geneva, Global Commission on International Migration, 2005, 3. 3 “Immigration Controls Tightened”, BBC News, 19 Sep. 2001, available at: http://news.bbc.co.uk/2/hi/uk_ news/1551671.stm (last visited 20 Sep. 2012).
Refugee Survey Quarterly 3 a human heart beating in the open air, through concrete and steel walls, in moving vehicles, and even under water.4 Another important aspect of the debates on migration and asylum in Europe has been the question of the role that the EU has played and ought to play in this policy area or, in other words, the extent to which EU Member States have remained – and should remain – in control of their national asylum and migration policies. Since the 1980s, cooperation on asylum and migration mat- ters has steadily developed, first outside the framework of the then European Community, before the Treaty of Maastricht granted the EU its first, albeit modest, competences in the field of asylum and migration.5 At the Tampere European Council in 1999, EU Member States announced their ambition to develop a “Common European Asylum System” (CEAS),6 although the Amsterdam Treaty only foresaw the adoption of minimum standards with regard to several aspects of asylum systems.7 Ten years later, the Stockholm Programme reaffirmed this goal. It called for the development of a “Europe of responsibility, solidarity and partnership in migration and asylum matters”.8 This would comprise a “dynamic and comprehensive migration policy” based on the so-called Global Approach to Migration, a CEAS and an integrated border management system for the EU’s external borders. In turn, these EU policy developments have had a significant impact on the national policies of the Member States. The influence of the EU over national policies is set to grow even stronger as the EU attempts to move beyond minimum standards to adopt common asylum standards. To date, many scholars analysing the development of the EU asylum and migration policy have argued that it has generally been restrictive, mainly aiming to keep people away from the EU territory.9 For example, Guiraudon has argued that EU cooperation on asylum and migration matters has been prompted by the willingness of European governments to develop more restrictive asylum and migration policies. According to her, European governments have “escaped” (or “venue-shopped”) to the EU level mainly as an attempt to circumvent liberal domestic pressures and obstacles – a successful attempt in her view, as she wrote 4 S. Van Walsum, “Foucault and the ‘Illegal Alien’: National Identity as Focus for Distinction and Control”, in P. Fitzpatrick & J.H. Bergeron (eds.), Europe’s Other: European Law Between Modernity and Postmodernity, Aldershot, Ashgate, 1998, 179. 5 Treaty on European Union (Treaty of Maastricht), OJ C 191, 20 Jul. 1992 (entry into force: 11 Nov. 1993). 6 European Council, Presidency Conclusions of the Tampere European Council, 15-16 October 1999, Bulletin of the European Union 10/1999. 7 Treaty of Amsterdam of 2 Oct. 1997, OJ C 340, 10 Nov. 1997 (entry into force: 1 May 1999). 8 Council of the European Union, The Stockholm Programme – An Open and Secure Europe Serving and Protecting the Citizens, EU Doc. 17024/09, 2 Dec. 2009. 9 See, amongst others, D. Joly, “The Porous Dam: European Harmonization on Asylum in the Nineties”, International Journal of Refugee Law, 6(2), 1994, 159–193; E. Guild, “International Terrorism and EU Immigration, Asylum and Borders Policy: The Unexpected Victims of 11 September 2001”, European Foreign Affairs Review, 8(3), 2003, 331–346; C. Levy “The European Union after 9/11: The Demise of a Liberal Democratic Regime?”, Government and Opposition, 40(1), 2005, 26–59; A. Baldaccini & E. Guild (eds.), Terrorism and the Foreigner: A Decade of Tension around the Rule of Law in Europe, Leiden, Martinus Nijhoff, 2006.
4 Christian Kaunert and Sarah Léonard j EU Asylum Policy in 2000.10 However, other scholars have more recently argued that EU asylum cooperation has actually raised the legal standards applicable to asylum-seekers and refugees in certain respects.11 Against this backdrop, this collection of articles aims to examine recent developments in the EU asylum policy. All the articles included in this special issue of Refugee Survey Quarterly were presented at an international conference on “The Governance of Asylum and Migration in the European Union” organized by the guest editors in January 2012. This was sponsored by a generous grant from the Jean Monnet Programme/Lifelong Learning Programme of the European Commission for the “EUSIM” project (2009–2012). In particular, this collection of articles aims to examine the impact of the entry into force of the Treaty of Lisbon12 and the adoption of the Stockholm Programme13 on European asylum cooperation. Drawing upon insights from the European stu- dies literature on supranational governance, it seeks to assess how far the EU asylum policy has travelled on the road to supranational governance, especially now that the EU has been granted the competence to adopt common, rather than minimum, standards with respect to several aspects of asylum systems. It also analyses the effects that this move towards supranational governance has had on the contents of the EU asylum policy and the standards of international protec- tion offered by EU Member States to those in need. In doing so, the articles gathered in this special issue reveal the significant role of some actors, whilst also highlighting the importance of perceived asylum and migration “crises” for propelling European integration forward. Although the main focus of this special issue is the EU asylum policy, the related policies concerning borders and mi- gration (including return measures) are also considered, given the important impact that they also have on asylum-seekers. Indeed, asylum-seekers are gener- ally required to cross borders to be able to apply for asylum or might arrive in Europe as part of so-called “mixed flows” of asylum-seekers and migrants. The remainder of this contribution aims to set the background to the articles presented in this special issue. First of all, it briefly introduces the concept of supranational governance. Then, it analyses the development of the EU asylum policy up to the entry into force of the Treaty of Lisbon and the adoption 10 V. Guiraudon, “European Integration and Migration Policy: Vertical Policy-Making as Venue Shopping”, Journal of Common Market Studies, 38(2), 2000, 251–271. 11 C. Kaunert & S. Léonard, “The Development of the EU Asylum Policy: Venue-Shopping in Perspective”, Journal of European Public Policy, 19(9), 2012 (forthcoming); N. El-Enany & E. Thielemann, “The Impact of EU Asylum Policy on National Asylum Regimes”, in S. Wolff, F.A.N.J. Goudappel & J.W. de Zwaan (eds.), Freedom, Security and Justice after Lisbon and Stockholm, The Hague, T.M.C. Asser Press, 2011, 97– 115. 12 Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, OJ C 306, 17 Dec. 2007 (entry into force: 1 Dec. 2009). 13 The Stockholm Programme is the multi-annual programme for the development of the Area of Freedom, Security and Justice (AFSJ), which was adopted under the Swedish Presidency in 2009. It follows the so-called Tampere Programme (see above footnote 6) and The Hague Programme (Council of the European Union, Presidency Conclusions of the Brussels European Council, 4-5 November 2004, EU Doc. 14292/1/04 REV1, 8 Dec. 2004; and Council of the European Union, The Hague Programme: Strengthening Freedom, Security and Justice in the European Union, OJ C 53/1, 3 Mar. 2005).
Refugee Survey Quarterly 5 of the Stockholm Programme in 2009, before highlighting the main innovations that those introduce. The scene is then set for all the articles to examine recent developments in the EU asylum policy and the related border and migration policies under the Treaty of Lisbon and the Stockholm Programme. This intro- duction concludes with an outline of all the articles gathered in this special issue. 2. Supranational governance and the EU asylum policy The complexity of EU asylum governance is compounded by the fact that the EU does not squarely fit within accepted categories of political organization. It is more than a regime, but less than a fully fledged federation. Whilst a process of political community-building is under way in Europe, it is evident that it is not complete yet. The EU has already successfully managed to prevent war and violence by building a new form of international political community, which erodes many of the traditional monopoly powers of the Nation State. However, attempts to define the territory through the twin processes of integration and enlargement have also created instances of “variable geometry”. Through various opt-outs, opt-ins (concerning the UK, Republic of Ireland, and Denmark), as well as intergovernmental agreements, such as the Schengen and Prüm Conventions, attempts at defining the EU territory have been accompanied by trends obscuring this very definition. The analysis of the development of the EU asylum policy can be enriched by the reading of the classic debates over the nature of EU integration. Neofunctionalists have defined European integration as “the process whereby political actors in several distinct national settings are persuaded to shift their loyalties, expectations and political activities towards a new center, whose insti- tutions possess or demand jurisdiction over pre-existing national states”.14 In other words, the loyalty of the citizens of a community can shift towards a new political entity, notably supranational organizations, such as the European Commission. In contrast, intergovernmentalists, such as Moravcsik,15 have por- trayed the European integration process as being driven by Member States and dominated by national interests. In his view, national leaders make choices in response to constraints and opportunities derived from the economic interests of powerful domestic constituents and the relative power of each State in the inter- national system. The role of the EU institutions is significantly limited, as they mainly bolster the credibility of interstate commitments.16 After falling out of fashion, neofunctionalism was revived by Stone Sweet, Sandholtz and their collaborators in the 1990s. They developed an updated 14 E. Haas, The Uniting of Europe: Political, Social, and Economic Forces 1950–57, Palo Alto, CA, Stanford University Press, 1958, 16. 15 A. Moravcsik, The Choice for Europe: Social Purpose & State Power from Messina to Maastricht, Ithaca, NY, Cornell University Press, 1998; A. Moravcsik, “A New Statecraft? Supranational Entrepreneurs and International Cooperation”, International Organization, 53(2), 1999, 267–306. 16 Moravcsik, The Choice for Europe.
6 Christian Kaunert and Sarah Léonard j EU Asylum Policy version of neofunctionalism incorporating some of the criticisms that had been levelled at that approach.17 According to their model, European integration is encouraged and sustained by the development of causal connections between three factors: transnational exchange, supranational organization, and European Community rule-making. In their view, the transition to supranational govern- ance proceeds in two ways. First of all, cross-border transactions generate social demand for EU laws; supranational organizations then play a key role in their development. According to this perspective, the role of supranational organiza- tions is considerable. In other words, institutions matter.18 Rules define roles (i.e. who is an actor), whilst actors behave in self-interested, rationalist-materialist ways. Therefore, institutions like the European Commission work to enhance their own autonomy and influence within the European polity. They acquire legitimacy by promoting the interests of transnational society. In their book The Institutionalization of Europe, Stone Sweet, Sandholtz, and Fligstein19 further develop this argument. Emphasizing that institutions are human artefacts – that is, they are made of and by humans –, they also introduce a notion of institutional change, which counters the static vision of institutionalist path- dependency. According to them, reasons for change are exogenous shocks, the fact that rule innovations are endogenous to politics, the diffusion of organiza- tional behaviour and models of action, as well as policy entrepreneurship. Institutional entrepreneurs20 are conceptualized as constructing and revising “policy frames” (i.e. collectively held sets of meanings), which engage other actors and define new relationships between them and chart courses of action. Sandholtz and Zysman21 suggest that informal entrepreneurship has been a ne- cessary condition for European integration regarding the single market. They hypothesize that, whilst structural change (e.g. American decline and Japanese ascent in economic power) was a necessary condition for the revitalization of the European project in the 1980s, it was not in itself sufficient. In particular, they argue that the European Commission played a key role as policy entrepreneur and that the move towards market unification can only be explained if one takes this leadership into account. They conclude that, whilst the Commission was able to take advantage of favourable conditions, it exercised crucial policy entre- preneurship, mobilizing a transnational coalition in favour of a unified market. Since this seminal work, which focused on the single market, has been published, European cooperation has considerably developed in other policy areas, including asylum. One can therefore analyse the development of the EU asylum policy through the lenses of supranational governance. How far 17 A. Stone Sweet & W. Sandholtz, “European Integration and Supranational Governance”, Journal of European Public Policy, 4(3), 1997, 297–317. 18 Ibid., 310. 19 A. Stone Sweet, W. Sandholtz & N. Fligstein, The Institutionalization of Europe, Oxford, Oxford University Press, 2001. 20 Ibid., 11. 21 W. Sandholtz & J. Zysman, “1992: Recasting the European Bargain”, World Politics, 42(1), 1989, 95–128.
Refugee Survey Quarterly 7 has cooperation on asylum matters travelled on the road towards supranational governance? And what have been the effects of this move towards supranational governance in the area of asylum? In order to assess the degree to which asylum is now being governed supranationally in the EU, we can draw upon and adapt the framework by Stone Sweet and Sandholtz22 to focus on institutional developments. As ex- plained earlier, according to this perspective, institutions matter. They work to enhance their own autonomy and influence and thereby acquire legitimacy by promoting the interests of EU Member States. Reasons for changes in the EU polity are exogenous shocks, the fact that rule innovations are endogenous to politics, the diffusion of organizational behaviour and models of action, and policy entrepreneurship, whereby institutional entrepreneurs construct and revise “policy frames” (i.e. collectively held sets of meanings) that engage other actors, define new relationships between them and chart courses of action. The next section analyses the development of the EU asylum policy until the entry into force of the Treaty of Lisbon and the adoption of the Stockholm Programme in 2009. It pays particular attention to institutional arrangements in order to highlight how EU Member States have gradually moved towards supra- national governance in the asylum area. 3. The development of the EU asylum policy 3.1. Early cooperation The EU asylum policy finds its origins outside the European Community’s setting. European cooperation on asylum initially developed within the frame- work of the Ad Hoc Group on Migration, which was established in 1986.23 The works of this group notably led to the adoption of the Convention determining the state responsible for examining an application for asylum lodged in one of the Member States of the European Community, also known as the Dublin Convention, in 1990.24 As Western European States were experiencing a peak in asylum applications,25 the Treaty of Maastricht formally brought this existing pattern of intergovernmental cooperation into the EU’s institutional framework without any significant alterations. Article K of this Treaty, which entered into force in 1993, identified asylum as one of the so-called nine “matters of common interest” in Justice and Home Affairs (JHA).26 It also emphasized that all these 22 Stone Sweet & Sandholtz, “European Integration and Supranational Governance”. 23 E. Guild, “The Impetus to Harmonise: Asylum Policy in the European Union”, in F. Nicholson & P. Twomey (eds.), Refugee Rights and Realities: Evolving International Concepts and Regimes, Cambridge, Cambridge University Press, 1999, 313; I. Boccardi, Europe and Refugees: Towards an EU Asylum Policy, The Hague, Kluwer Law International, 2002. 24 OJ C 254/1, 19 Aug. 1997. 25 El-Enany & Thielemann, “The Impact of EU Asylum Policy”, 98. 26 S. Lavenex, Safe Third Countries: Extending the EU Asylum and Immigration Policies to Central and Eastern Europe, Budapest, Central European University Press, 1999.
8 Christian Kaunert and Sarah Léonard j EU Asylum Policy matters were to be dealt with in compliance with the 1950 European Convention on Human Rights27 and the 1951 Convention Relating to the Status of Refugees.28 The latter, also known as the Geneva Convention, is the cornerstone of the international protection regime. It codifies a legal definition of “refugee”29 and obliges signatory States not to return or expel refugees to territories where they would be threatened (principle of non-refoulement).30 The specific institutional arrangements put in place by the Treaty of Maastricht meant that, in practice, EU Member States remained the dominant actors in the early development of the EU asylum policy. The Council was only required to “fully associate” the Commission to its work on asylum, as well as to inform the European Parliament about its asylum initiatives.31 In addition, the European Court of Justice had no jurisdiction on asylum measures. As a conse- quence, the measures adopted on the basis of such inter-governmental arrange- ments tended to be restrictive, in line with the preferences of the dominant actors – the Interior Ministers – whose preferences were not counter-balanced by those of other actors.32 However, it is important to note that the effect of these EU measures was rather limited, as those were mainly “soft law” instru- ments, such as recommendations and resolutions.33 Thus, achievements in the area of asylum had been rather modest when the European Council launched the project of establishing a CEAS in October 1999 at the Tampere Summit. 3.2. The first phase of the CEAS (1999–2004) EU Heads of State and Government met in October 1999 in Tampere to agree on a work programme for the development of the Area of Freedom, Security and Justice (AFSJ), which they had decided to establish when adopting the Treaty of Amsterdam in 1997. The AFSJ was succeeding to the “JHA pillar”, which had been established by the Treaty of Maastricht, and therefore comprised policy matters such as asylum. The work programme adopted by the European Council in October 1999, which came to be known as the Tampere Programme, aimed 27 Convention for the Protection of Human Rights and Fundamental Freedoms, CETS No. 005, 4 Nov. 1950 (entry into force: 3 Sep. 1953). 28 Geneva Convention Relating to the Status of Refugees, 189 UNTS 137, 28 Jul. 1951 (entry into force: 22 Apr. 1954). 29 Art. 1(A)(2) of the Geneva Convention defines a refugee as any person who, “[as] a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”. 30 See G.S. Goodwin-Gill & J. McAdam, The Refugee in International Law, 3rd edn., Oxford, Oxford University Press, 2007. 31 Arts. K.4 and K.6 of the Treaty of Maastricht. 32 J. Huysmans, “The European Union and the Securitization of Migration”, Journal of Common Market Studies, 38, 2000, 751; Guiraudon, “European Integration and Migration Policy”, 251. 33 A. Geddes, Immigration and European Integration: Towards Fortress Europe?, Manchester, Manchester University Press, 2000.
Refugee Survey Quarterly 9 to facilitate the adoption of the AFSJ measures that had been foreseen by the Treaty of Amsterdam, which had entered into force on 1 May 1999. In its Article 73(k),34 this Treaty stated that the Council was to adopt, within five years of its entry into force, a series of measures on asylum, namely criteria and mechanisms for determining the Member State responsible for considering an asylum appli- cation, as well as minimum standards concerning the reception of refugees, the definition of “refugee”, and the procedures governing the asylum process. In addition, Article 73(k) called for the adoption of minimum standards for giving temporary protection to displaced persons and persons who otherwise need international protection and for promoting a balance of efforts amongst Member States (so-called burden-sharing measures).35 Moreover, it emphasized again the EU’s commitment to develop its asylum policy in accordance with the Geneva Convention and other relevant treaties. Thus, the competences that the Treaty of Amsterdam had granted the EU represented an advance in European integration on asylum issues, but were still limited with regard to both the scope of the work programme and the level of harmonization to be achieved. In addition, decision-making on asylum was not entirely “communitarized”. The European Commission acquired the right of initiative in the asylum policy area, but had to share it with the Member States during a transitional period of five years, before acquiring the sole right of initiative (Article 73(o) of the Treaty of Amsterdam).36 During this transitional five-year period, the Council took decisions unanimously after consulting the European Parliament, which was therefore to remain at the periphery of EU asylum policy-making during the Tampere process. The Treaty of Amsterdam also reinforced the role of the European Court of Justice in the asylum policy area, although its jurisdiction was also limited to specific instances (Article 73(p)). In Tampere, the EU Heads of State and Government aimed to draw upon these new treaty provisions to give a strong impetus to several aspects of the AFSJ, including asylum. In that respect, it is striking that the section on asylum and migration matters of the Tampere Summit conclusions was entitled “A common EU asylum and migration policy” and contained a subsection on “A Common European Asylum System”. It was the first time that EU Member States declared that their intention was to develop a “common policy” on asylum matters, since the Treaty of Amsterdam had only foreseen the adoption of 34 This article was to become Art. 63 in the consolidated version of the Treaty establishing the European Community (TEC), OJ C 321 E/37, 29 Dec. 2006. 35 On burden-sharing, see E. Thielemann, “Why European Policy Harmonisation Undermines Refugee Burden-Sharing”, European Journal of Migration and Law, 6, 2004, 43; E. Thielemann, “Symbolic Politics or Effective Burden-Sharing? Redistribution, Side-Payments and the European Refugee Fund”, Journal of Common Market Studies, 43, 2005, 807; E. Thielemann & T. Dewan, “The Myth of Free-Riding: Refugee Protection and Implicit Burden-Sharing”, West European Politics, 29, 2006, 351. 36 However, in practice, the European Commission managed to significantly influence the development of the EU asylum policy by behaving as a successful “supranational policy entrepreneur” (C. Kaunert, European Internal Security: Towards Supranational Governance in the Area of Freedom, Security and Justice, Manchester, Manchester University Press, 2010).
10 Christian Kaunert and Sarah Léonard j EU Asylum Policy “minimum standards”.37 The Tampere conclusions explicitly spelt out that the adoption of common minimum standards in the short term aimed to pave the way to “a common procedure and a uniform status for those who are granted asylum valid throughout the Union” in the longer term.38 With regard to policy achievements, the first phase of the CEAS saw the adoption of an impressive number of legislative instruments. All the measures that the Treaty of Amsterdam had required the EU to adopt within five years of its entry into force were duly adopted.39 The main legislative instruments adopted during the first phase of the CEAS were as follows.40 The Temporary Protection Directive41 lays down provisions on temporary protection for displaced persons in the context of a mass influx of persons seeking protection. The existence of such a situation of “mass influx” is to be established by the Council voting according to the qualified majority voting procedure and on the basis of a proposal from the Commission. The Council decision is binding on all Member States, although none of them is obliged to admit a specific number of persons in need of international protection. Every Member State is to ascertain its own reception capacity in a spirit of “Community solidarity”.42 Thus, this represents an attempt at establishing an EU system of “burden-sharing” in cases of mass influx of displaced persons from third countries. However, it is a rather modest attempt, as the Directive, for example, does not foresee any mechanism of financial solidarity amongst Member States. The Reception Conditions Directive43 lays down minimum standards for various aspects of the reception of asylum-seekers in the EU Member States, including information, residence and freedom of movement, employment, edu- cation and vocational training, material reception conditions, and health care. Although some have criticized that these minimum standards on reception con- ditions do not apply to the recipients of temporary protection,44 the efforts to ensure the provision of minimum reception conditions across the EU have been 37 J. Van der Klaauw, “Towards a Common Asylum Procedure”, in E. Guild & C. Harlow (eds.), Implementing Amsterdam: Immigration and Asylum Rights in EC Law, Oxford, Hart, 2001, 165–193. 38 European Council, Presidency Conclusions of the Tampere European Council, 15-16 October 1999. 39 The Asylum Procedures Directive had actually not been formally adopted by 1 May 2004, but Member States had already reached a political agreement on the text by that date. 40 Because of space constraints, this article focuses on asylum legislative instruments and does not consider relevant financial instruments, such as the European Refugee Fund or the AENEAS Programme (i.e. the Programme for financial and technical assistance to third countries in the area of migration and asylum), which are financial instruments. The external dimension of the EU asylum policy is not considered either. 41 Council Directive 2001/55/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, OJ L 212/12, 7 Aug. 2001. 42 K. Hailbronner, “Asylum Law in the Context of a European Migration Policy”, in N. Walker (ed.), Europe’s Area of Freedom, Security and Justice, Oxford, Oxford University Press 2004, 41. 43 Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, OJ L 31/18, 6 Feb. 2003. 44 E. Guild, “Seeking Asylum: Storm Clouds between International Commitments and EU Legislative Measures”, European Law Review, 29, 2004, 213.
Refugee Survey Quarterly 11 generally welcome, notably with a view to reducing secondary movements of asylum-seekers.45 The Dublin II Regulation46 establishes the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national. The main goal of this regulation is to ensure that an asylum-seeker has access to an asylum procedure in one of the EU Member States on the basis of responsibility criteria. Thus, the regulation aims to tackle both problems of “asylum shopping” (i.e. multiple applications for asylum across the EU by the same person) and “refu- gees in orbit” (i.e. asylum-seekers unable to find a State accepting to examine their application in the EU). The Dublin II Regulation replaces, and addresses some deficiencies of, the Dublin Convention, which was adopted in 1990. Although the Regulation establishes a hierarchy of criteria, the main principle underpinning the system is that the State responsible for processing an applica- tion is the State responsible for the asylum-seeker’s presence in the EU, that is, the State through which an asylum-seeker has entered the EU.47 However, there is no provision in the Regulation preventing a given Member State to examine an asylum application, even if it is not formally responsible for its processing. The implementation of this so-called “Dublin system”, which entails transfers of asylum-seekers amongst Member States for the processing of their application, relies on EURODAC48 to a significant extent. This instrument is a database containing the fingerprints of asylum-seekers, which is used to ascertain whether (and in which EU Member State) a given asylum-seeker has already applied for asylum in the EU. It has been operational since January 2003.49 The Asylum Qualification Directive50 lays down minimum standards for “the qualification of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted” (Article 1). It outlines the criteria that a person needs to fulfil in order to qualify for subsidiary protection and for being a refugee respectively, as well as elaborates on the status associated with each of these categories. Whilst the def- inition of “refugee” is that of the Geneva Convention, “a person eligible for subsidiary protection” is defined as a person who does not qualify for refugee status, but is nevertheless at risk of suffering serious harm in his (or her) country 45 Hailbronner, “Asylum Law”. 46 Council Regulation (EC) 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, OJ L 50/1, 25 Feb. 2003. 47 Hailbronner, “Asylum Law”; S. Da Lomba, The Right to Seek Refugee Status in the European Union, Antwerp, Intersentia, 2004, 119. 48 Council Regulation (EC) 2725/2000 of 11 December 2000 concerning the establishment of ‘EURODAC’ for the comparison of fingerprints for the effective application of the Dublin Convention, OJ L 316/1, 15 Dec. 2000. 49 Hailbronner, “Asylum Law”. 50 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, OJ L 304/12, 30 Sep. 2004.
12 Christian Kaunert and Sarah Léonard j EU Asylum Policy of origin. The Directive is particularly innovative in two respects. Firstly, whereas, traditionally, most Member States only recognized state actors as actors of perse- cution or serious harm, the Directive foresees that non-state actors can also be considered actors of persecution or serious harm in certain circumstances. Secondly, the Directive outlines various examples of “acts of persecution”, which indicate that this concept is to be interpreted more broadly than is generally the case in existing national legislations. As also emphasized by El-Enany and Thielemann,51 these important provisions have had a profound impact on the legislation and practices in several EU Member States, including France and Germany.52 For example, Chetail53 has described the change concerning non-state actors in French legislation – from an “accountability approach”, which requires a link between persecution and the State, to a “protection approach” that focuses on the lack of protection – as “[creating] a sort of cultural revolution for French judges”.54 As a consequence, this Directive has generally been received positively by pro-migrant non-governmental organizations and asylum experts, such as Storey who has called the Refugee Qualification Directive “a remarkable develop- ment”.55 Others have been more circumspect. For example, McAdam has wel- comed the codification of ad hoc practices of complementary protection into a “subsidiary protection” regime, but has deplored the entrenchment of the differ- entiation made between refugees and recipients of subsidiary protection.56 The Asylum Procedures Directive57 provides for several minimum procedural standards, regarding issues such as access to the asylum procedure, the right to remain in the Member State pending the examination of the application, guarantees and obligations for asylum-seekers, personal interviews, legal assist- ance and representation, detention, and appeals. In addition, the Directive also codifies some important concepts,58 such as “safe country of origin”59 and “safe 51 El-Enany & Thielemann, “The Impact of EU Asylum Policy”. 52 H. Storey, “EU Refugee Qualification Directive: A Brave New World?”, International Journal of Refugee Law, 20, 2008, 1. 53 V. Chetail, “The Implementation of the Qualification Directive in France: One Step Forward and Two Steps Backwards”, in K. Zwaan (ed.), The Qualification Directive: Central Themes, Problem Issues and Implementation in Selected Members States, Nijmegen, Wolf Legal Publishers, 2007, 87–101. 54 Ibid., 95. 55 Storey, “EU Refugee Qualification Directive”, 5. 56 J. McAdam, “The European Union Qualification Directive: The Creation of a Subsidiary Protection Regime”, International Journal of Refugee Law, 17, 2008, 461. 57 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, OJ L 326/13, 13 Dec. 2005. 58 Hailbronner, “Asylum Law”. 59 The Directive allows Member States to apply the concept of “safe country of origin”. In practice, this means that Member States are allowed not to examine an application for asylum lodged by a person originating from a country that is considered a “safe country of origin”. Art. 29(1) and (2) of the Directive had also given the Council the competence to adopt and amend a European list of “safe countries of origin”, but these articles were annulled by the European Court of Justice in 2008, following an application for annulment filed by the European Parliament (Case C-133/06).
Refugee Survey Quarterly 13 third country”.60 Some have criticized the contents of this Directive, in particular the lack of suspensive effect for appeals61 and the concepts of “safe country of origin” and “safe third country”.62 However, it is important to note that these minimum procedural standards have actually required several EU Member States to raise their standards from the point of view of the protection of asylum- seekers.63 For example, Portugal and Spain have had to significantly restrict the grounds on which asylum applications can be declared inadmissible.64 Thus, the first phase of the CEAS can generally be considered a success, most notably on the grounds that the various instruments foreseen by the Treaty of Amsterdam have indeed been adopted and have established minimum stand- ards from which EU Member States cannot derogate. Whilst some would have liked to see these minimum standards being pitched at a higher level (from the point of view of asylum-seekers), it is important to note that those are only minimum standards. The Temporary Protection, Asylum Qualification, Asylum Procedures and Reception Conditions Directives all explicitly state that Member States may retain or introduce more favourable provisions. In addition, as ex- plained before and as also argued by El-Enany and Thielemann,65 even those minimum standards have required some Member States to raise their existing standards, whilst there is no conclusive evidence suggesting a general lowering of more generous protection standards across the EU. 3.3. The pre-Lisbon/Stockholm second phase of the CEAS (2005–2009) In 2004, the EU Member States adopted a new general programme for the AFSJ – the so-called Hague Programme – in replacement of the Tampere Pro- gramme.66 With regard to asylum, the Hague Programme highlighted again the EU’s ambition to go beyond minimum standards to develop a CEAS, which would be based on a common asylum procedure and a uniform status for those who are granted asylum or subsidiary protection. The Hague Programme also underlined that the development of the CEAS was to be underpinned by the 60 The Directive allows Member States to apply the concept of “safe third country”. In practice, this means that Member States are allowed to provide no, or no full, examination of the asylum applications lodged by persons who have transited through a country that is considered a “safe third country”. Art. 36 (3) of the Directive had also given the Council the competence to adopt and amend a European list of “safe third countries”, but this article was annulled by the European Court of Justice in 2008, following an application for annulment filed by the European Parliament (Case C-133/06). 61 R. Byrne, “Remedies of Limited Effect: Appeals under the forthcoming Directive on EU Minimum Standards on Procedures”, European Journal of Migration and Law, 7, 2005, 71. 62 C. Costello, “The Asylum Procedures Directive and the Proliferation of Safe Country Practices: Deterrence, Deflection and the Dismantling of International Protection?”, European Journal of Migration and Law, 7, 2005, 35. 63 D. Ackers, “The Negotiations on the Asylum Procedures Directive”, European Journal of Migration and Law, 7, 2005, 1. 64 M. Fullerton, “Inadmissible in Iberia: The Fate of Asylum Seekers in Spain and Portugal”, International Journal of Refugee Law, 17, 2005, 659. 65 El-Enany & Thielemann, “The Impact of EU Asylum Policy”. 66 See above footnote 13.
14 Christian Kaunert and Sarah Léonard j EU Asylum Policy “full and inclusive application of the Geneva Convention on Refugees and other relevant Treaties”.67 The European Council called for the adoption of the second-phase instruments and measures necessary for the establishment of the CEAS by the end of 2010. It also invited the European Commission to present studies on the joint processing of asylum applications, inside and outside the EU, respectively. In addition, the European Council highlighted the need to further develop practical cooperation amongst Member States regarding the assessment of asylum applications, first through the establishment of “appropriate structures involving the national asylum services of the Member States”, which should subsequently be transformed into a “European support office” to support co- operation on asylum amongst Member States.68 In practice, there was a noticeable slowing down of the EU legislative ac- tivities relating to asylum after 2004, at the beginning of the second phase of the CEAS. This was not surprising given the time and energy that had just gone into the negotiations of the first phase asylum instruments. Both the Member States and the European Commission also considered that it was necessary to evaluate the minimum standards instruments before seeking to harmonize asylum stand- ards further. In 2007, the European Commission tabled a Green Paper, which launched a public consultation on the future of the CEAS.69 The results of both the consultation and the evaluation of the implementation of the minimum standards were used by the Commission to develop a Policy Plan on Asylum, which was released in June 2008.70 It emphasized that the CEAS has three main pillars, namely legislative harmonization, practical cooperation, and solidarity amongst Member States – which, importantly, is associated to the idea of “sense of responsibility”. In the run-up to the entry into force of the Treaty of Lisbon and the adoption of the Stockholm Programme, the European Commission tabled vari- ous legislative proposals. Following the adoption of conclusions on the practical cooperation in the field of asylum by the Justice and Home Affairs Council in April 2008, it put forward a proposal to establish a permanent structure to support practical cooperation amongst EU Member States in the field of asylum – the European Asylum Support Office (EASO) – in 2009. It also tabled proposals for Recast Directives on Reception Conditions (2008), Asylum Procedures (2009), Asylum Qualification (2009), as well as proposals for a Recast Dublin Regulation (2008) and a Recast EURODAC Regulation (2009). Those aimed to remedy the shortcomings that were identified during the evaluation of the first phase instruments. In particular, the Commission observed 67 Council of the European Union, Presidency Conclusions of the Brussels European Council, 4-5 November 2004, Annex I, 17. 68 Ibid., 18. 69 Commission of the European Communities, Green Paper on the Future Common European Asylum System, COM(2007) 301, 6 Jun. 2007. 70 Commission of the European Communities, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions: Policy Plan on Asylum – An Integrated Approach to Protection across the EU, COM(2008) 360, 17 Jun. 2008.
Refugee Survey Quarterly 15 that “the agreed common minimum standards [had] not created the desired level playing field”.71 However, negotiations proved to progress rather slowly. It also became evident that the initial 2010 deadline for the completion of the CEAS would not be met. This led the Council of the European Union to raise, for the first time, the possibility of a postponement of the deadline to 2012 in the European Pact on Immigration and Asylum, which was adopted in 2008.72 4. The impact of the Treaty of Lisbon and the Stockholm Programme on the EU asylum policy 4.1. The Treaty of Lisbon It is in this context of protracted negotiations on new asylum instruments that the Treaty of Lisbon entered into force on 1 December 2009. As previously announced, this introduction does not aim to assess the impact of the Treaty of Lisbon on the development of the EU asylum policy. This task is fulfilled by the articles presented in this special issue. Nevertheless, it is important to emphasize that one can expect the entry into force of the Treaty of Lisbon to significantly influence the development of the EU asylum policy for three main reasons. First of all, this treaty has granted the EU new competences on asylum, going beyond the adoption of minimum standards on several aspects of asylum systems. Secondly, it has altered the institutional arrangements in the asylum policy area, by reinforcing the role of the EU institutions, in particular the European Parliament and the Court of Justice of the European Union. Thirdly, the Treaty of Lisbon has rendered the Charter of Fundamental Rights, which was originally adopted in 2000, legally binding on all EU Member States.73 The Treaty of Lisbon has granted the EU new competences in the area of asylum (Article 78 of the Treaty on the Functioning of the European Union (TFEU))74. As explained earlier, the Treaty of Amsterdam had only given the EU the competence to legislate on minimum standards with respect to several aspects of asylum. The Treaty of Lisbon goes beyond those as it enables the EU to adopt measures on: (a) a uniform status of asylum valid throughout the Union, (b) a uniform status of subsidiary protection, (c) a common system of temporary protection, (d) common procedures for granting and withdrawing asylum and subsidiary protection, (e) criteria and mechanisms for determining the Member State responsible for assessing an application for protection, (f ) standards on reception conditions of applicants, and (g) partnership and co-operation with 71 Ibid., 4. 72 Council of the European Union, European Pact on Immigration and Asylum, EU Doc. 13440/08, 24 Sep. 2008. At p. 11, it is mentioned that the European Commission should “present proposals for establishing, in 2010 if possible and in 2012 at the latest, a single asylum procedure [. . .]”. 73 Charter of Fundamental Rights of the European Union, OJ C 364/01, 18 Dec. 2000 (entry into force: 1 Dec. 2009). 74 The Treaty of Lisbon has fundamentally reorganized the legal provisions underpinning the EU’s activities into two treaties, namely the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU).
16 Christian Kaunert and Sarah Léonard j EU Asylum Policy third countries for the purpose of managing inflows of people. The Treaty of Lisbon also contains an article that enshrines the principle of “solidarity and fair sharing of responsibility” in the EU asylum and migration policy and enables the Union to adopt measures in order to implement this principle (Article 80 TFEU). It is also interesting to note that the Treaty of Lisbon does not set any deadline for the adoption of these measures, whereas the Treaty of Amsterdam stated that the various measures on minimum standards for asylum systems had to be adopted within five years of the entry into force of the treaty. Moreover, the Treaty of Lisbon has significantly altered the institutional arrangements presiding over the development of the EU asylum policy. It fore- sees that all asylum legal instruments should be adopted in accordance with the ordinary legislative procedure, which is laid down in Article 294 TFEU. In other words, what used to be known as the “co-decision” procedure has become the standard decision-making procedure for asylum, with qualified majority voting in the Council of the European Union. This means that the European Parliament has now acquired joint decision-making power on asylum, which represents a significant increase in power for this institution compared to pre- vious institutional arrangements.75 In addition, judicial control has been ex- panded, as the European Court of Justice’s76 role has been strengthened with respect to the AFSJ, including the EU asylum policy. In particular, the Court’s preliminary jurisdiction, which used to be limited, has been generalized to all AFSJ matters by the Treaty of Lisbon, with respect to both primary and second- ary law. Such important institutional changes are likely to have strong implica- tions for the development of the EU asylum policy. Indeed, the role of the EU institutions has been greatly strengthened in this policy area. The European Parliament now has the potential to considerably influence the future balance of power between the different EU institutions and the future development of the EU asylum policy, whilst the Court is likely to see a significant increase in the number of cases concerning asylum, which will also give it opportunities to shape this policy area. This influence could be particularly important in the field of asylum, since recent case-law of the European Court of Justice has shown a “trend of interpreting the law in order to accommodate the need for protection of fundamental individual rights”.77 However, it is important to note that this reinforced role for the EU institutions may be counterbalanced by the 75 E. De Capitani, “The Evolving Role of the European Parliament in the AFSJ”, in J. Monar (ed.), The Institutional Dimension of the European Union’s Area of Freedom, Security and Justice, Brussels, P.I.E. Pieter Lang, 2010, 113. 76 Since the entry into force of the Treaty of Lisbon, the Court has been renamed the “Court of Justice of the European Union”. It is divided between the General Court (previously the Court of First Instance) and the higher Court of Justice. 77 V. Hatzopoulos, “Casual but Smart: The Court’s New Clothes in the Area of Freedom, Security and Justice (AFSJ) after the Treaty of Lisbon”, in J. Monar (ed.), The Institutional Dimension of the European Union’s Area of Freedom, Security and Justice, Brussels, P.I.E. Peter Lang, 2010, 153.
Refugee Survey Quarterly 17 elevation of the European Council (i.e. the Heads of State and Government) to the role of strategic policy actor in the whole AFSJ (Article 68 TFEU). Finally, the Treaty of Lisbon has rendered the Charter of Fundamental Rights, which contains an article on the right to asylum, legally binding. Article 6(1) TEU foresees that the Charter has the same legal value as the treaties. The Charter of Fundamental Rights of the EU was adopted by the European Parliament, the Council and the Commission in 2000. It proclaims various civil, political, economic and social rights, as well as rights attached to European citizenship. In particular, its Article 18, as amended by the Treaty of Lisbon, states that “[the] right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees [. . .]”.78 This means that all the EU’s secondary legislation, including EU directives and regulations on asylum, will have to comply with the provisions of the Geneva Convention and the 1967 Protocol. According to Gil-Bazo, this provision applies to: all individuals who fall under the scope of application of the Union’s law, whose international protection grounds are established by international human rights law, including the Refugee Convention and the European Convention on Human Rights.79 Thus, the binding character of the Charter means that there is now “a subjective and enforceable right of individuals to be granted asylum under the Union’s law”,80 except in the four countries that do not recognize the legally binding nature of the Charter.81 It can therefore be concluded that the now binding character of the Charter of Fundamental Rights is likely to lead to a strengthen- ing of the rights of asylum-seekers in the EU. 4.2. The Stockholm Programme In line with its tradition of adopting five-year work programmes for the AFSJ, the EU adopted, in 2009, its third AFSJ programme for the period 2010–2014, which is entitled the Stockholm Programme. This document envisions the es- tablishment of “a common area of protection and solidarity based on a common asylum procedure and a uniform status for those granted international protec- tion”.82 With regard to the “protection” dimension, the European Council calls 78 This Protocol – often referred to as the 1967 Protocol or the New York Protocol – abolished the geographical and temporal limitations that were originally inscribed in the Geneva Convention. Indeed, the application of the Convention was originally limited to those made refugees “by events occurring in Europe before 1 January 1951”, although the signatory States could decide to apply the Convention more broadly. Protocol Relating to the Status of Refugees, 606 UNTS 267, 31 Jan. 1967 (entry into force: 4 Oct. 1967). 79 M.-T. Gil-Bazo, “The Charter of Fundamental Rights of the European Union and the Right to be Granted Asylum in the Union’s Law”, Refugee Survey Quarterly, 27, 2008, 33. 80 Ibid., 51. 81 The UK, Poland, the Czech Republic, and the Republic of Ireland. 82 Council of the European Union, The Stockholm Programme – An Open and Secure Europe Serving and Protecting the Citizens, 69.
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