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New Approaches, Alternative Avenues and Means of Access to Asylum Procedures for Persons Seeking International Protection

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New Approaches, Alternative Avenues and Means of Access to Asylum Procedures for Persons Seeking International Protection DIRECTORATE GENERAL FOR INTERNAL POLICIES POLICY DEPARTMENT C: CITIZENS' RIGHTS AND CONSTITUTIONAL AFFAIRS JUSTICE, FREEDOM AND SECURITY NEW APPROACHES, ALTERNATIVE AVENUES AND MEANS OF ACCESS TO ASYLUM PROCEDURES FOR PERSONS SEEKING INTERNATIONAL PROTECTION STUDY Abstract Upon request by the LIBE committee, this study examines the workings of the Common European Asylum System (CEAS), in order to assess the need and potential for new approaches to ensure access to protection for people seeking it in the EU, including joint processing and distribution of asylum seekers. Rather than advocating the addition of further complexity and coercion to the CEAS, the study proposes a focus on front-line reception and streamlined refugee status determination, in order to mitigate the asylum challenges facing Member States, and guarantee the rights of asylum seekers and refugees according to the EU acquis and international legal standards. PE509.989 EN DOCUMENT REQUESTED BY THE COMMITTEE ON CIVIL LIBERTIES, JUSTICE AND HOME AFFAIRS AUTHORS Prof. Elspeth Guild is Senior Associate Research Fellow at the Centre for European Policy Studies (CEPS), Brussels. She is Jean Monnet Professor ad personam of European immigration law at Radboud University Nijmegen (Netherlands) as well as Queen Mary, University of London. Dr. Cathryn Costello is Andrew W. Mellon Associate Professor in International Human Rights and Refugee Law, at the Refugee Studies Centre, Oxford University, with a fellowship at St Antony's College. Ms. Madeline Garlick, is a Guest Researcher and PhD candidate at the Centre for Migration Law at Radboud University, Nijmegen, The Netherlands. She is also an International Migration Initiative (IMI) Fellow with the Open Society Foundations, working in 2014 on an asylum project with Migration Policy Institute Europe. Dr. Violeta Moreno-Lax is a Lecturer in Law at Queen Mary, University of London and the EU Asylum Law Coordinator at the Refugee Law Initiative of the University of London. Mr. Minos Mouzourakis is an MSc graduate in Refugee and Forced Migration Studies from the Refugee Studies Centre, Oxford University. with the participation of: Dr. Sergio Carrera, Senior Research Fellow at CEPS. ADVISORY BOARD Prof. Guy Goodwin Gill, All Souls, Oxford University, Oxford Dr. Jeff Crisp, Refugees International, Washington DC Prof. Cristina Gortázar Rotaeche, Comillas University, Madrid Prof. Gregor Noll, Lund University, Lund Mr. Kris Pollet, European Council on Refugees and Exiles, Brussels Prof. Jens Vedsted Hansen, Aarhus University, Aarhus RESPONSIBLE ADMINISTRATOR Ms Sarah SY Policy Department C -Citizens' Rights and Constitutional Affairs European Parliament B-1047 Brussels E-mail: [email protected] Editorial assistant Ms. Lucia-Cristina ACHIHAEI LINGUISTIC VERSIONS Original: EN ABOUT THE EDITOR Policy Departments provide in-house and external expertise to support EP committees and other parliamentary bodies in shaping legislation and exercising democratic scrutiny. To contact the Policy Department or to subscribe to its monthly newsletter please write to: [email protected] European Parliament, manuscript completed in October 2014. © European Parliament, Brussels, 2014. This document is available on the Internet at: http://www.europarl.europa.eu/studies DISCLAIMER The opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorized, provided the source is acknowledged and the publisher is given prior notice and sent a copy. Policy Department C: Citizens' Rights and Constitutional Affairs ____________________________________________________________________________________________ CONTENTS GLOSSARY 6 LIST OF ABBREVIATIONS 7 EXECUTIVE SUMMARY 9 1. INTRODUCTION – UNPACKING THE ‘BURDEN’ 15 1.1. Safe access from outside the EU – what this study is NOT about 15 1.2. A burden of our creation 16 1.2.1. The costs of coercion 17 1.2.2. The costs of complexity 19 1.2.3. An unequal burden? 20 1.3. Understanding the population 21 1.3.1. Legal vulnerability 21 1.3.2. Irregular entrants 22 2. EVIDENCE-LED POLICY MAKING IN THE CEAS 24 2.1. Numbers or ethics? 24 2.2. Sources of data 26 2.3. Four critical dates: 1999, 2004, 2009 and 2014 27 2.4. Dublin I, II and III: the outcomes of asylum seeker transfers 36 2.5. Using data 39 2.6. Conclusion 40 3. CURRENT AND PROPOSED JOINT APPROACHES TO ALLOCATION, ACCESS TO PROCEDURES, FIRST-LINE RECEPTION AND PROCESSING41 3.1. Access to procedures, responsibility for asylum claims and asylum seekers’ basic entitlements: current EU framework and practice 42 3.2. First-line reception – identification, registration and referral 43 3.3. Joint processing models 47 3.4. Allocation of responsibility for asylum claim processing or solutions 50 3.4.1. Redistribution of responsibility for asylum seekers 50 3.4.2. Allocation of responsibility for people granted international protection 56 3.5. Conclusions 59 4. LEGAL CONSTRAINTS ON FIRST-LINE RECEPTION, RSD, JOINT PROCESSING SCHEMES AND DISTRIBUTION MECHANISMS 60 4.1. Decisions and applicable standards 61 4.2. Identification and referral 63 4.3. First-line reception 65 4.4. Fair procedures (at first instance) 68 4 New Approaches, Alternative Avenues and Means of Access to Asylum Procedures for Persons Seeking International Protection ___________________________________________________________________________________________ 4.5. Effective remedies 70 5. DESIGNING FAIR PROCEDURES AND ENSURING EFFECTIVE REMEDIES: A PROACTIVE, INTERACTIVE APPROACH 72 5.1. Principles of institutional design 73 5.1.1. Assessing all asylum seekers' vulnerability 73 5.1.2. Ensuring non-punitive approaches to irregular entry 74 5.1.3. Avoiding unnecessary complexity and delay 75 5.1.4. Accountability and expertise: a multi-actor approach 78 5.2. Joint processing 79 5.3. Distribution Mechanisms 80 6. POSSIBLE SOLUTIONS: GIVING MEANING TO SOLIDARITY AND FAIR RESPONSIBILITY SHARING 81 6.1. Access to asylum systems: Institutional design and principles 82 6.2. Allocation of responsibility: Dublin without coercion 84 7. CONCLUSIONS AND POLICY RECOMMENDATIONS 88 REFERENCES 93 ANNEXES 105 Annex I – Acknowledgments 105 Annex II – List of interviewees 105 Annex III – Key Insights Emerging from Surveys and Interviews 106 1. Current Framework and Proposals on Joint Processing and Distribution 107 1.1. Joint processing initiatives 107 2. Distribution of responsibility and the Dublin system 109 2.1. EWM and changes to the Dublin Regulation 109 2.2. Alternative models for distribution of responsibility 110 2.3. Mutual recognition of positive asylum decisions 111 3. Legal Constraints on First Line Reception, and Joint Reception 111 3.1. Legal obstacles to joint processing 111 3.2. Target group for joint processing 112 3.3. Reception conditions 112 4. Designing Fair Procedures 113 4.1. Front-loading legal support 113 4.2. A multi-actor approach 113 5 Policy Department C: Citizens' Rights and Constitutional Affairs ____________________________________________________________________________________________ GLOSSARY Acquis Accumulated legislation and jurisprudence constituting the body of European Union law Asylum seeker(s) Person(s) seeking international protection, whether or protection recognition as a refugee, subsidiary protection beneficiary or seeker(s) other protection status Königsteiner German key for the distribution of asylum applicants between Schluessel Bundesländer Humanitarian Visa authorising a non-national’s entry on humanitarian visa grounds Legal support Legal information, advice and representation Non-entrée Policies directed towards restricting the entry of non- policies nationals into a state Praesidium Project on first screening of persons arriving by sea, coordinated by the Italian Ministry of Interior Refugee(s) The term is used throughout to refer to persons falling under the definition of the 1951 Refugee Convention or subsidiary protection beneficiaries Refugee status The term is used throughout to refer to determinations determination concerning both refugee status and subsidiary protection 6 New Approaches, Alternative Avenues and Means of Access to Asylum Procedures for Persons Seeking International Protection ___________________________________________________________________________________________ LIST OF ABBREVIATIONS ALDE Alliance of Liberals and Democrats in Europe AMIF Asylum, Migration and Integration Fund APD Asylum Procedures Directive ARIO International Law Commission Articles on Responsibility of International Organisations ASR International Law Commission Articles on State Responsibility CAT United Nations Convention against Torture 1984 CoE Council of Europe COREPER Permanent Representatives Committee (Council of the European Union configuration) CPT Council of Europe Committee for the Prevention of Torture CEAS Common European Asylum System CJEU Court of Justice of the European Union CSR United Nations Convention Relating to the Status of Refugees DRC Democratic Republic of the Congo ECHR European Convention on Human Rights 1950 ECtHR European Court of Human Rights ECRE European Council on Refugees and Exiles EASO European Asylum Support Office EMN European Migration Network ERF European Refugee Fund EU European Union EUCFR Charter of Fundamental Rights of the European Union EU-LISA European Union Agency for Large-Scale IT Systems in the Area of Home Affairs 7 Policy Department
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