EU: Reforming the 'Common European Asylum System': where things stand

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Reforming the 'Common European Asylum System' and the resettlement system: progress report
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The Presidency of the Council of the EU has published a useful note outlining the state of play with seven legislative proposals that were published by the Commission in 2016. These proposals are aimed at reforming the 'Common European Asylum System' (CEAS) and the EU's system for resettling refugees from non-EU countries.

The proposals in question are: "the recast of the Dublin Regulation and of the Eurodac Regulation, a proposal for a Regulation on the establishment of the European Union Agency for Asylum (EUAA), a proposal for a Regulation establishing a common [asylum] procedure in the EU, a proposal for a Qualification Regulation, the recast of the Reception Conditions Directive and a proposal for a Regulation establishing a Union Resettlement Framework."

Law professor Steve Peers noted in a May 2016 analysis of the Commission's proposals for new regulations on the Dublin system and a European Asylum Agency, alongside proposed new rules on visas and the Schengen area, that:

"Essentially, these proposals amount to the ‘Orbanisation’ of EU asylum law. They copy and entrench across the EU the key elements of the Hungarian government’s policy, which was initially criticized: refusing essentially all asylum-seekers at the external border and treating them as harshly as possible so as to maintain the Schengen open borders system."

Regardless of the content of any of the proposals, the progress report makes clear the long-standing problems with the law-making process in the EU, with proposals being discussed behind closed doors in secretive Council working parties and secret "trilogue" negotiations with the European Parliament being used to try to reach swift agreement on texts, bypassing the openness that would allow for greater public scrutiny and democratic debate.

See the Presidency's note: Reform of the Common European Asylum System and Resettlement (12802/17, 6 October 2017, pdf)

The note highlights the following points (emphasis in quotes added).

Dublin Regulation. The 'Dublin' system sets out the rules for determining the Member State responsible for examining applications for international protection and is primarily based on the rule that the first Member State in which an individual is registered should be responsible. 'Frontline' Member States (such as Italy and Greece) thus have to process applications from a disproportionate number of applicants.

The report states:

"the Estonian Presidency has taken forward the discussions with a view to reaching a compromise on the effective application of the principles of solidarity and responsibility. This work has been based on the common understanding of the need to strike the right balance between the principles of responsibility and solidarity and the need to ensure resilience to future crises, as well as on the broad support for a comprehensive approach of which the reform of CEAS is only one aspect.

...the Presidency has aimed at consolidating the understanding of all the generally stable points and finding as much common ground as possible on issues where the compromise has so far not proved possible. Based on these contacts, the issue will be further discussed at political level in due course in order to find the right balance that would allow for continuation of the examination of the Commission proposal by the Council preparatory bodies. It has to be stressed that all the aspects of the current reform are interlinked and compromise will be required on all sides in order to establish the required support leading to the reform of the current CEAS."

On the current Dublin Regulation, see a recent report by the UNHCR: Left in limbo: UNHCR study on the implementation of the Dublin Regulation (Statewatch News Online, 10 October 2017)

Reception Conditions Directive. The Commission's July 2016 proposal aimed at further harmonising "reception conditions throughout the Union and to reduce the incentives for secondary movement [individuals moving from one Member State to another]. The proposal also aim at increasing applicants' self-reliance and possible integration prospects by reducing the time-limit for access to the labour market."

The Presidency's note says:

"The proposal on the recast of the Reception Conditions Directive was initially examined by the Asylum Working Party and is currently being pursued by the JHA Counsellors [a Council working group that produces no meaningful public record of its meetings].

"...some issues still need to be tackled, in particular the provisions related to the measures aimed at preventing secondary movements, including the assignment of residence, detention and the reduction and withdrawal of material reception conditions, as well as the provisions on the unaccompanied minors. The Presidency aims at reaching a partial general approach and at starting negotiations with the EP at the earliest opportunity."

Qualification Regulation. Will replace the Qualification Directive, which"sets out criteria for applicants to qualify for refugee status or subsidiary protection and defines the rights afforded to beneficiaries of these statuses, hence provisions on protection from refoulement, residence permits, travel documents, access to employment, access to education, social welfare, healthcare, access to accommodation, access to integration facilities, as well as specific provisions for children and vulnerable persons."

Law professor Steve Peers noted in July 2017 that while the proposals are still subject to negotiations, as they stood at the time "the changes [the text] would make to the definition of refugee status may lead to fewer refugees being recognised".

According to the Presidency:

"Under Estonian Presidency, a mandate for negotiations with the European Parliament was obtained in Coreper on 19 July 2017. The provisions containing cross-references to other proposals in the CEAS package and specific provisions,which need further discussion in the Council preparatory bodies, are not included in this mandate and are expected to be agreed at a later stage. Two specific issues (the definitions of family members and a new annex, which would contain the various information to be provided to the beneficiaries of international protection) are also not included in the mandate either. The Presidency intends to discuss further these two issues already in October with the aim of including them in a revised mandate by the end of its term.

The trilogues with the European Parliament [discussion held in secret] have started in September 2017. The first discussions highlighted, among others, the following sensitive issues: approximation of both statuses and length of residence permits, Internal Protection Alternative and its application, status reviews for beneficiaries of refugee and subsidiary protection statuses, the possibility for a beneficiary of international protection to remain on the territory of the Member State for three months after the withdrawal of the status on the basis of cessation ("grace period"). On these aspects, the positions of the Council and of the European Parliament are very different and, therefore, complex negotiations are to be envisaged."

Asylum Procedures Regulation. Replaces a Directive and governs the asylum procedures that Member States must apply when assessing applications for international protection. Critical comments on the Commission's proposal were issued by the European Council on Refugees and Exiles in November 2016.

The Presidency's report says:

"The Estonian Presidency finalised the first examination of the whole proposal on the Asylum Procedure Regulation, in the beginning of September, and started the discussion of the first draft compromise proposals in the Asylum Working Party in the same month. In June 2017, the European Council gave a clear mandate to the Council to align the Commission´s proposal on the Asylum Procedures Regulation, regarding the safe third country concept, with the effective requirements of the Geneva Convention and the EU primary law. In order to identify the best way to fulfil this mandate, the Presidency held a policy debate on this issue in SCIFA (28 September 2017). As a next step, the Presidency aims to redraft the relevant provisions in the Asylum Procedure Regulation. The Presidency intends to pursue the examination of the compromise proposals and to make as much progress as possible towards a general approach."

Eurodac Regulation. The Eurodac fingerprint database is used to enforce the Dublin Regulation (fingerprints are used to assess which Member State should be responsible for an individual's application for international protection). The Commission's proposal would significantly expand the scope of the database (so that it can be used to enforce return decisions) and its scale, by including photographs alongside fingerprints with a view to the future introduction of facial recognition technology.

The Presidency's report says:

"...negotiations between the Council and the European Parliament on the recast Eurodac Regulation started in September 2017. While the positions of both the Council and the EP are rather similar on most provisions of the recast Regulation, access of law enforcement authorities to Eurodac, data retention periods and special provisions relating to minors can be expected to require negotiations that are expected to be more complex. Both co-legislators aim at reaching an agreement on this file before the end of the term of the current Presidency [in December this year]."

European Union Agency for Asylum (EUAA) Regulation. This new body would upgrade the European Asylum Support Office to an agency in order to, according to the Commission's proposal, "ensure the efficient and uniform application of European Union asylum law in order to achieve greater convergence between Member States' asylum systems."

The report says:

"...the Maltese Presidency started negotiations with the European Parliament in January 2017. As a result of a series of technical meetings and trilogues, the Maltese Presidency reached an agreement on the enacting terms of the text during the trilogue of 28 June. The Estonian Presidency is currently continuing work at a technical level in order to align the recitals of the text with the main body of the proposal."

Resettlement Regulation. Designed "to establish a common European policy on resettlement to ensure orderly and safe pathways to Europe for persons in need of international protection," according to the Commission. Amnesty International highlight in December 2016that " there are serious concerns with key aspects of the proposal. Amnesty International strongly objects to resettlement becoming instrumental to the objective of migration deterrence and returns."

The Presidency's note says:

"JHA Counsellors have pursued the discussion on the Resettlement Framework Regulation and have examined draft compromise proposals at two meetings under the Estonian Presidency (18 September and 3 October).

Progress has already been made on many aspects of the proposal, but there are still some issues that remain open, including the definitions and the scope of "resettlement" and "humanitarian admission" as well as the status given to the persons admitted.

The Presidency is currently working on new compromise proposals in order to make progress in this file at JHA Counsellors level. The Presidency aims to reach a Council´s mandate for starting negotiations with the European Parliament at the earliest opportunity."

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