The Common European Asylum System – Time for a reboot?

A line of Syrian refugees crossing the border of Hungary and Austria on their way to Germany, 6 September 2015. Pic: Mstyslav Chernov, CC BY-SA 4.0.

Even though recognizing the principle of non-refoulement and the need for a joint approach in order to guarantee high human rights standards of refugees’ protection, the Common European Asylum System (CEAS) was conceptualized as a migration control instrument, based on the principles of solidarity and mutual trust. Yet, the proclaimed “refugee crisis” revealed the ambiguity of the reciprocal nature of solidarity in the field of asylum among member states (MS) and the structural shortcomings of the CEAS.

In order to compensate the internal flaws, the EU turns increasingly to external solutions. However, the cooperation with non-EU countries is blurring the line between migration control interests and obligations towards persons seeking further protection: not only that it undermines the credibility of the EU but also detracts from the urgent need to rethink the objectives of the CEAS.

System shutdown

The CEAS was born out of the rationale that the Schengen room requires flanking measures for the abolition of internal borders. The rules determining the MS responsible for asylum procedures and eradicating differences in national legal systems, aligning national asylum practices and traditions, ultimately aim at preventing secondary movements and thereby the free movement of asylum seekers within the borderless EU. However, once under stress by the rising numbers of arrivals, the European rules proved to be dysfunctional as instruments to control migration, and were largely disrespected by MS’ will to protect their national borders.

A system can be defined as a set of connected things or devices that operate together in order to achieve one objective. In fact, in order to function properly, a legal system requires more than the mere sum of norms concerning a specific subject. System functionality, instead, depends on the frame in which these norms are articulated, normally relating to a common understanding of the objectives and purposes of the system. Similarly, repairing or eventually replacing a dysfunctional system requires a common political understanding of the necessity of change and the willingness to hazard eventual individual setbacks for the sake of the greater objective of maintaining the system as a whole. However, the current political situation impedes common decisions aimed at reforming the CEAS and internal burden sharing.

System replacement

In order to compensate and to whitewash the internal collapse of the CEAS, to a certain extent, the EU turns to external solutions in order to regain sovereignty over the perceived “crisis”. Even though cooperation with third states in the field of asylum seekers isn’t new, the EU-Turkey “deal” is the first concrete and implemented example of cooperation with a third state. At its core, the agreement addresses the flows of people travelling across the Aegean from Turkey to the Greek islands. By preventing access to the EU and the CEAS, the lacking consensus concerning internal reforms can be gilded, since the responsibility for migration control and asylum is shifted to a third state. From a functionalist perspective, the decreasing numbers of people arriving in Greece prove these efforts right. However, assessing the said agreement in a more holistic way and looking beyond a mere numerical assessment of outcomes, implications, and repercussion reveals the real costs. First, from a political perspective, in its efforts to reduce arrivals, the EU became a hostage of unreliable political forces in third countries. Secondly, to achieve the objective of reducing the numbers, the EU is not only willing to trade off well-established principles of human rights and asylum law. It rather accepts their erosion as collateral damage, thereby normalizing the human tragedies reported on a daily basis (in global/media).

System reboot?

Clearly, the EU cannot construct its asylum policy in isolation. Yet, while shifting responsibilities for people seeking protection may seem to be tempting, the erosion of human rights’ commitments related to detention, the rule of law, the principle of non-refoulement and the dependency on unreliable partners suggest that the next crisis of the EU will not be long in coming. The external dimension of asylum can only be a complementary pillar to CEAS – not replacing, but supporting it. The attempts to externalize migration and asylum conceal the willingness of the EU to ignore the paradox of founding the CEAS without establishing ways for people in need of protection to submit asylum applications in the first place. This “Darwinism of asylum“ is, however, contradictory to the commitments of the EU to provide protection to those in need. The creation of legal migration channels to the EU and the creation of entry procedures sensitive to refugees’ protection have often been brought up at the policy level; yet, only little joint cooperative measures have been installed. Resettlement programs face their limits and the possibility for humanitarian visa has only recently been annihilated by the CJEU, which was also applauded by the MS. Neglecting the necessity to provide access for protection seekers not only undermines the EU’s human rights credibility. In addition, it is also counterproductive to rely on external solutions instead of seeking solutions for responsibility sharing mechanisms at the internal level. Therefore, in order to overcome the current deadlock, an unemotional and objective discussion of what actually constitutes fair responsibility sharing is needed to reboot the CEAS. Furthermore, to avoid a situation in which European judges question the legality of new instruments, the EU has to clearly define the scope of protection of refugees’ in accordance with its legal obligations. In order to relieve these developments at the internal level, they have to be complemented with the creation of legal ways for people seeking protection which go beyond political commitments. Therefor, the EU would not only regain its credibility but also its independence from third states providing long-term, instead of short term, populist solutions.

About the author

Lisa Heschl holds a European Master Degree in Human Rights and Democratization (E.MA) and PhD in Law from the University of Graz and is currently working as a Post-Doc research and teaching fellow at the European Training and Research Centre on Human Rights and Democracy at the University of Graz (UNI-ETC). In her research she focuses in particular on the European migration and asylum policy and legislation , the extraterritorial application of international and European refugee and human rights law. She is engaged in various research and educational projects dealing with human rights, migration and asylum (e.g. Erasmus+ PROMIG project; H2020 LEGIT) and has published widely in this field (e.g. Salomon/Heschl/Benedek/Oberleitner, Blurring Boundaries – Human Security and Migration, Brill, forthcoming).