Common European Asylum System: we already needed it in 2012
In spite of negotiations, the Common European Asylum System (CEAS) has still not been finalised and its shortcomings are having a negative effect on asylum seekers.
Cooperation at the European level in the asylum field during the 1990s was a response to the influx of refugees which some Member States, especially France and Germany, were facing as a consequence of the conflicts in the Balkans and the collapse of the communist totalitarian regimes in Central and Eastern Europe. Conflicts and persecution in some parts of the world are not decreasing, and the number of asylum seekers in the EU (nearly 300,000 a year) is quite stable. Nevertheless, apart from the expected increase in Syrians (7,760 applicants last year), figures show an exceptional and unjustified increase in the case of Balkan countries (329% more Macedonian applicants, 193% of Albanians, 160% of Serbians and 158% of Bosnians), which shows a probable abuse of the system. This is one of the issues that the new CEAS must face in order to avoid genuine asylum seekers being adversely affected y fake applications.
The new EURODAC Regulation (and in general the Dublin system) should also prevent the abuse of asylum procedures in the form of multiple applications for asylum submitted by the same person in several Member States with the sole aim of extending his/her stay in the Member States (in 2005, 16% of asylum applications), a phenomenon known as “asylum shopping”. Some asylum seekers continue trying to obtain a favourable decision for their case by submitting more than one asylum application.
Lack of common standards in asylum legislation (for example, in the reception conditions) provides an incentive for asylum seekers to lodge their complaints in some countries with higher recognition rates and social benefits. EU harmonisation in this field will reduce the variations in attraction between Member States and will naturally make for a better distribution of asylum seekers.
An important issue is that of the legal guarantees and fairness in terms of human rights during the examination of the application (for example, accelerating procedures and a fair right to appeal), but also the need to avoid the transfer of the applicant to a Member State where humane treatment is not guaranteed (see, the ECJ judgment 21 December 2011, cases N. S and M. E. & others). A common “migrant centred” standard at the EU level is desirable, as well as the facilitation of family reunification.
Member States’ divergent implementation of the EU asylum legislation also justifies its recasting, because in reality there is no common system if the practical consequences derived from the same legal framework are far from being similar. Common rules are needed, but also when unclear or vague wording opens the door to contradictory interpretations or exceptions. For example, the right to remain in the Member State pending the outcome of First Instance procedures is generally recognised in national legislations. But Member States adopt divergent approaches, however, with respect to surrender or extradition-related exceptions. Concerning the Procedures Directive, the European Commission stated that “optional provisions and derogation clauses have contributed to the proliferation of divergent arrangements across the EU, and that procedural guarantees vary considerably between Member States.” In other instances, the wide discretion allowed by a Directive (as jn the reception conditions) in a number of areas undermines its main objective. Not unusual is the wrong transposition of the provisions (or a failure to transpose): for example, the implementation of standards, which are lower than those established by the Qualification Directive. On the other hand, divergences in the application of an EU Directive can be justified in optional clauses (improvement of the minimum EU standards; lack of competence in a particular issue, for example family law in asylum-related matters, such as family reunification).
We have already seen part of the asylum package approved (the Qualification Directive, the Long-Term Residence Directive, the creation of the European Asylum Support Office-EASO), and the common EU resettlement priorities and funding); but the commitment to establish a CEAS in 2012 was not fulfilled. It is important that during the Irish Presidency this goal is aimed at, and that asylum seekers receive a fair and humane treatment, before, during and after the decision of the national body concerning his or her application; it does not matter which Member State decides, including those with a special status in the asylum field (the UK, Ireland and Denmark).
José Luis Bazán