The relocation mechanism as an answer to the asylum crisis of 2015: What it is and what are its challenges from a legal point of view

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THE RELOCATION MECHANISM AS AN ANSWER TO THE ASYLUM CRISIS OF 2015:

What it is and what are its challenges from a legal point of view

University of Eastern Finland UEF Law School

Master’s Thesis 22.2.2018

Karoliina Mäenpää 236117 Supervisor: Emilia Korkea-aho

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Abstract

UNIVERSITY OF EASTERN FINLAND Faculty

Faculty of Social Sciences and Business Studies

Department UEF Law School Author

Karoliina Mäenpää Title

THE RELOCATION MECHANISM AS AN ANSWER TO THE ASYLUM CRISIS OF 2015: What it is and what are its challenges from a legal point of view

Major

European Law

Level

Master’s Thesis

Date

Spring 2018

Pages XIII + 60 Abstract

The migratory crisis of 2015 has been challenging the EU and its Member States. Masses of asylum seekers have come to the EU. The EU is now facing new challenges: finding solutions to the refugee crisis. One of these solutions has been the relocation mechanism.

In 2015, the Council gave two decisions, Decision 2015/1523 and Decision 2015/1601.

The aim of the Decisions’ is to relocate 160 000 people from Greece and Italy to other Member States.

The migratory crisis has shown that the current CEAS is infective. New solutions are brought up to find ways to make the CEAS work. The main idea of the relocations is to help frontline Member States such as Greece and Italy by lightening their burden. The Decisions are based on solidarity and fair sharing of responsibility. All Member States should participate equally to the common effort.

The relocations make an exemption to the current legislation. While the relocations have had a positive impact, they have also been criticized by some Member States. That has been challenging since the legality of the Decisions have been questioned. In addition, a question that has been brought up is whether the relocation mechanism has been necessary and should the current CEAS have been used instead.

Key Words

Asylum crisis, Relocation mechanism

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Tiivistelmä

ITÄ-SUOMEN YLIOPISTO

Tiedekunta

Yhteiskuntatieteiden ja kauppatieteiden tiedekunta

Yksikkö

Oikeustieteiden laitos Tekijä

Karoliina Mäenpää Otsikko

Sisäinen siirtomenettely ratkaisuna vuoden 2015 pakolaiskriisiin: Mikä on siirtomenettely ja mitkä ovat sen oikeudelliset haasteet

Pääaine

Eurooppaoikeus

Työn laji Pro Gradu- tutkielma

Päivämäärä Kevät 2018

Sivut XIII + 60 Tiivistelmä

Vuoden 2015 pakolaiskriisi on haastanut Euroopan Unionia ja sen jäsenvaltioita.

Ennennäkemätön määrä turvapaikanhakijoita on saapunut EU:n alueelle. Nyt EU:n haasteena on keksiä toimivia ratkaisuja pakolaiskriisin ratkaisemiseksi. Yksi näistä väliaikaisista toimienpiteistä on ollut sisäiset siirrot.

Euroopan Unionin neuvosto on antanut kaksi päätöstä, päätös 2015/1523 sekä päätös 2015/1601 sisäisitä siirtomenettelyistä, joiden tarkoituksena on auttaa Kreikkaa ja Italiaa.

Päätösten tarkoituksena on siirtää 160 000 selvästi kansainvälistä suojelua tarvitsevaa henkilöä Kreikasta ja Italiasta muihin EU maihin.

Pakolaiskriisin myötä on huomattu, kuinka nykyinen EU:n yhteinen turvapaikkapolitiikka ei ole toimiva. Uusia ratkaisuja yritetään keksiä, jotta EU:n turvapaikkapolitiikka toimisi kuten sen pitää, myös kriisien aikana. Sisäisten siirtojen tarkoituksena on keventää Kreikan ja Italian taakkaa. Geopoliittisen asemansa vuoksi suurin pakolaispaine on asettunut nimenomaisesti Kreikkaan ja Italiaan jotka ovat ns. etulinjassa olevia jäsenvaltioita. Sisäiset siirrot perustuvat yhteisvastuun sekä oikeuden mukaisen vastuunjaon periaatteelle. Jokaisen EU:n jäsenvaltion tulisi olla mukana auttamassa kriisissä.

Sisäiset siirrot tekevät poikkeuksen olemassa olevaan lainsäädäntöön. Sisäiset siirrot ovat toimineet, mutta ne ovat saaneet myös suurta kritiikkiä osalta jäsenmaista. Tämä taas on aiheuttanut haasteista lainopillisesta näkökulmasta.

Avain sanat

Pakolaiskriisi, siirtomenettely, sisäiset siirrot

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ABBREVIATIONS

AMIF Asylum, Migration and Integration Fund

CEAS Common European Asylum System

CJUE Court of Justice of the European Union

EASO European Asylum Support Office

EC European Community

EU European Union

GDP Gross Domestic Product

IOM International Organization for Migration

ISF Internal Security Fund

TEEC Treaty Establishing the European Community

TFEU Treaty on the Functioning of the European Union

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CASE LAW

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1. INTRODUCTION

The European Union (EU) is facing new challenges as there are so many migrants coming to Europe. It was in the summer of 2015 that the number of migrants coming to Europe hit a new high. In 2015, over a million people applied for asylum within the EU. That is the highest amount of asylum applications in the EU’s history.¹ People are fleeing war and conflicts from their home countries and are trying to find shelter in Europe. The main reasons behind the refugee crisis are the conflicts in Syria, Afghanistan and Iraq. Hence most of the asylum seekers also come from those countries. Since the political situation in the world is so unstable, the EU is now facing new challenges; finding solutions to the refugee crisis.

Asylum seekers and refugees are nothing new in Europe. Over the years, the EU has taken in asylum seekers for example during the Arab Spring of 2011 and the civil war in Libya.

Still, it was only the refugee crisis of 2015 that reached the headlines and all of a sudden, the crisis became the center of attention.²

There are different routes for migrants to enter Europe. The most common one being the route from Turkey to Greece. Also, the Western Balkan route and the Central Mediterranean route are popular.³ Due to their geological placement, Italy and Greece have been one of the key entry points for asylum seekers and thus Italy and Greece have also been burdened the most by the masses of people.⁴

The asylum crisis has shown that the European asylum system has flaws and structural problems.⁵ At the moment, the EU’s migration and asylum policies are based on the Common European Asylum System (CEAS). The development of a Common European Asylum System started already in 1999 and the main idea behind the CEAS was to provide common minimum standards within the EU.⁶ However, even though the CEAS provides

1 Asylum statistics, http://ec.europa.eu/eurostat/statistics-explained/index.php/Asylum_statistics.

2 Thym 2016, page 1547.

3 Frontex Risk Analysis 2016, page 6.

4 Greenhill 2016, page 319.

5 Thym 2016, page 1549.

6 Staffans 2012, page 33.

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common minimum standards within the EU, there are big differences between Member States in how asylum seekers and their applications are handled.⁷

The CEAS consists of two regulations and four Directives. Regulation 604/2013⁸, also known as the Dublin III Regulation. In short, the Dublin regulation determinates which Member State is responsible of the examination of an asylum application.⁹ The other Regulation is Regulation 603/2013¹⁰ also known as the EURODAC regulation. It creates a fingerprint database, where all the asylum seekers’ fingerprints are collected. The Dublin regulation and the EURODAC regulation together forms the so called “Dublin System”. ¹¹ In addition to the two Regulations, there are also four directives that are part of the CEAS.

The first one is the Temporary Protection Directive¹². The main idea behind said directive is that in case there would be masses of third country nationals coming to Europe they would be offered immediate and temporary protection. The second one is the Asylum Procedures Directive¹³. The main idea of the Directive is that the asylum application process is efficient and fair. For example, the time limits for the examination of the application is set for six months, everyone should be entitled to lodge their application quickly and effectively and

7 The Common European Asylum System, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we- do/policies/european-agenda-migration/background-information/docs/20160406/factsheet_-

_the_common_european_asylum_system_en.pdf.

8 Regulation (EU) No 604/2012 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determinating the Member State responsible for examining an application for international protection lodged in one of the Member States by a third country national or a stateless person.

Official Journal of the European Union. L180/31. 29.6.2013.

9 European Commission, Country responsible for asylum application https://ec.europa.eu/home-affairs/what- we-do/policies/asylum/examination-of-applicants_en.

10 Regulation (EU) No 603/2013 of the European Parliament and of the Council of June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third country national or a stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice. OJ L 180, 29.6.2013, p. 1-30.

11 European Commission, Identification of applicants https://ec.europa.eu/home-affairs/what-we- do/policies/asylum/identification-of-applicants_en.

12 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. Official Journal of the European Communities. L212/12. 7.8.2001.

13 Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast). Official Journal of the European Union. L180/60. 29.6.2013.

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the ones in need of special guarantees should be given support.¹⁴ The third directive is the Reception Conditions Directive¹⁵. As the name already tells, the Directive aims that all applicants would have good reception conditions as well as ensuring that Member States would have harmonized standards in their reception conditions. All applicants should have basic needs such as a place to stay, food, clothes etc. Additionally, vulnerable persons should be offered special attention to for example by providing psychological support.¹⁶ The last directive that is part of the CEAS is the Qualification Directive¹⁷. The Directive sets out the criteria that a person must fulfil in order to qualify for refugee status. The aim is to guarantee that the people who are fleeing their home countries are treated fairly and alike in all Member States.¹⁸

As it can be seen, the two regulations and four directives of the CEAS covers quite a large area of asylum law. In addition to the directives and regulations mentioned above, there are also other directives concerning EU asylum law.¹⁹ In this case however, it is not necessary to bring them up.

As mentioned above, the CEAS only provides minimum standards which means that some Member States provide much better circumstances for asylum seekers than other Member States. Legally, Member States are only required to provide minimum standards that are laid down in the CEAS which means that Member States cannot be obligated to offer better circumstances than what are required. Still, some Member States do offer much better circumstances. In theory, it should not matter in which Member State an asylum seeker hands in his application. All Member States should provide the same treatment to asylum seekers, so that everyone would have the same possibilities and rights. Unfortunately, it does not

14 European Commission > Migration and Home Affairs > What we do > Common European Asylum System

> Asylum procedures, https://ec.europa.eu/home-affairs/what-we-do/policies/asylum/common- procedures_en.

15 Directive 2013/33/EU of the European Parliament and the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast). Official Journal of the European Union.

L180/96. 29.6.2013.

16 European Commission > Migration and Home Affairs > What we do > Policies > Common European Asylum System> Reception conditions, https://ec.europa.eu/home-affairs/what-we- do/policies/asylum/reception-conditions_en.

17 Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaires of international protection, for uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast). Official Journal of the European Union. L337/9.20.12.2011.

18 European Commission > Migration and Home Affairs > Who qualifies for international protection, https://ec.europa.eu/home-affairs/what-we-do/policies/asylum/refugee-status_en.

19 An Introduction to the Common European Asylum System for Courts and Tribunals 2016, page 18.

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work quite as it should. Some Member States provide much better circumstances to asylum seekers than others and that is something that should be taken into consideration. The uneven reception conditions are one of the main reasons why some Member States are more appealing to asylum seekers than others.²⁰

Since so many people are coming to Europe to seek asylum, the EU needs to find ways to cope with the sudden inflow of asylum seekers and their applications. A ten point action plan²¹ was presented as a response to the migration crisis. The main idea behind the ten point plan was to make an immediate difference to the migration crisis. It consists of ten actions to which all Member States should participate in.²²

The European Agenda on Migration soon followed. The European Agenda on Migration has collected the steps that the EU should take in order to overcome the challenges that the migration crisis has brought. The main responsibility is to help and protect the ones in need, in this case the asylum seekers. The Commission created immediate actions that the Member States should act on. Those immediate actions include for example saving lives at sea, targeting criminal smuggling networks, responding to the high volumes of arrivals within the EU and to work in partnership with third countries to tackle migration upstream.²³ As it can be seen above, the EU has indeed made many new proposals in order to make the EU asylum policies work in a time of crisis. One of those measures is the responding to high volumes of arrivals within the EU by relocations. The Council gave two Decisions, Decision 2015/1523²⁴ and Decision 2015/1601²⁵ that aim to relocate a total of 160 000 asylum seekers from Greece and Italy to other Member States. The main idea behind the relocations is to lighten the burden of frontline Member States and to make sure that all Member States participate to the common effort to help the refugees equally.

20 Thym 2016, page 1550.

21 European Commission-Press release, IP/15/4813.

22 European Commission-Press release, IP/15/4813.

23 COM (2015) 240 Final.

24 Council Decision (EU) 2015/1523 of 14 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and of Greece. OJ L 239, 15.9.2015, p. 146-156.

25 Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece. OJ L 248, 24.9.2015, p. 80-94.

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This thesis will present the relocation mechanism. Firstly, the evolution of EU asylum laws will be briefly presented. How did we get to where we are today? Secondly, we will take a closer look to one of the Commission’s immediate actions to solve the migration crisis: the relocation mechanism. The mechanism will be presented closely: what it actually is and how it works. Lastly, the challenges of the relocations will be discussed. The main focus of the challenges will be from a legal point of view. The legitimacy of the decisions will be evaluated. Also, the relocation mechanism will be compared and evaluated to the current CEAS. The aim is to give the reader a general overlook and understanding of the Commission’s two decisions on relocations.

The method that is used in this thesis is legal dogmatic. The idea is to read and interpret the current legislation. While studying the current legal basis some general guidelines should also be given on how to interpret the laws and what could be done in a better way. Since the method in this thesis is legal dogmatic, the current legislation will be examined and studied.

Also, cases concerning the topic will be discussed and presented. The legislation used in this thesis has been observed as it stood at the end of 2017.

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2. THE EVOLUTION OF EU ASYLUM LAW

EU asylum law is a complex area. It is a mix of national laws, EU harmonization and international human right obligations.²⁶ One must keep in mind that there are also international commitments that are binding, such as the Refugee convention of 1951²⁷ and the 1967 Protocol.²⁸ When talked about the EU’s Justice and Home Affairs, there is a fine line between the protection of human rights and the Member States public order and security.²⁹ For example, with the migration crisis at hand it is important that the ones in need of protection get all the help that they can get, while at the same time Member States need to make sure that their security is not threatened by single asylum seekers.

This chapter will present abruptly the main points of the evolution of EU asylum law. Firstly, there will be a general overlook of the steps on how the EU asylum law became to where it is today. Then, the Common European Asylum System will be introduced. Lastly, the EU’s current asylum situation will be presented.

2.1 The Early Stages of EU Asylum Laws

As it is known, the EU started as an economic integration and the main idea was to keep peace in Europe. Over time, the EU has expanded and its objectives and goals have evolved.

Asylum questions have not been part of the EU’s agenda for that long, as it is one of the last topics that has been brought up to the European integration project. One of the main reasons being that asylum and immigration are sensitive subjects. Member States want to keep the power to decide on questions regarding asylum for themselves. But little by little, Member States have given up their powers and the EU asylum laws have developed.³⁰

One of the first steps was the Schengen agreement³¹ that was signed in 1985 in Luxembourg.

The Schengen Agreement formed the Schengen territory which means a territory where there

26 Peers 2011, page 295.

27 UN Convention Relating to the Status of Refugees 1951. Geneva, 28.7.1951.

28 Peers – Moreno-Lax – Gralick – Guild 2015, page 1.

29 Peers 2011, page 1.

31The Schengen acquis – Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders. Official Journal of the European Union.

L239, 22.9.2000, p.19-62.

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are no internal borders. The countries that are part of the Schengen agreement only share external borders. Since there are no internal borders, the free movement of persons within the Schengen area is guaranteed. It was in 1995 that the Schengen Agreement finally took effect.³²

In the 80’s and in the beginning of the 90´s EU States started to make basis for contemporary legislation regarding asylum and refugee questions with intergovernmental agreements.³³ For example in 1989, the European Council had a meeting in Madrid where it adopted “the Palma Document”. It was stated in said document that “To this end, a set of legal, administrative and technical instruments should be established, as criteria will need to be harmonized on treatment of non-Community citizens”.³⁴ It is quite clearly stated, that there is a need for a common policy in regards of asylum related matters. However, no EU directives were adopted at that time.³⁵

With the idea of a common policy in asylum matters in mind, the Dublin convention was formed in 1990. It was one of the most important steps towards a Common European Asylum System at that time.³⁶ The Dublin convention determinates, which Member State is responsible for examining the asylum application. Usually the Member State responsible for the examination of the application is the Member State where the asylum seeker first entered.³⁷ With the Dublin convention, the idea of a common asylum system became even more distinct. The Dublin convention in itself was a first step towards a wider asylum policy within the EU.³⁸

In 1992, the Maastricht treaty³⁹ was signed and it entered force in 1993. The pillar system was formed and the third pillar was about matters relating to Justice and Home Affairs. That

32 The Schengen acquis – Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders. Official Journal of the European Union.

L239, 22.9.2000, p.19-62.

34 “The Palma Document” Free Movement of Persons. A report to the European Council by the Coodinators’

Group (Madrid, June 1989) http://www.statewatch.org/semdoc/assets/files/keytexts/ktch1.pdf.

35 Chetail – De Brycker – Maiani 2016, page 6.

37 Convention Determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities. Official Journal of the European Communities. No C 254/1.

19.8.97.

39 Treaty on Maastricht, Official Journal, C 191, 29.7.1992.

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meant that matters relating to asylum were part of the third pillar and they were acknowledged as a “matter of common interest”.⁴⁰ The Maastricht treaty in itself did not bring any major changes regarding EU asylum laws. However, the Amsterdam Treaty in 1997 was a breakthrough.

Probably the biggest change in EU asylum history was the Treaty of Amsterdam⁴¹ that was signed in 1997 and entered into force in 1999. It was then, that the European Community (EC, as it was called at that time) was granted the right to adopt measures that had to do with immigration and asylum law.⁴² With the Amsterdam treaty immigration and asylum laws were relocated from the third pillar to be part of the EC Treaty.⁴³ That meant that there was a big improvement in the harmonization process.⁴⁴ Prior to the Amsterdam Treaty, the EC’s authorities were mainly limited to issues concerning the principle of free movement and visa policies.⁴⁵

To put if briefly, the first steps in the evolution of EU asylum law was the Schengen Agreement in 1985. It was followed by the Dublin convention in 1990. In the early 90’s there were talks about harmonizing asylum laws within the EU, but nothing was actually made and things remained intergovernmental. The next step was the Maastricht treaty and finally the big breakthrough in EU asylum law: The Treaty of Amsterdam in 1997.

In 1999, the notion of a Common European Asylum System was brought up in the Tampere Conclusions.⁴⁶ Before that, there had been no actual process towards a common asylum system within the EU. As the CEAS was presented, the process of harmonizing EU asylum law had begun. The next chapter will present the CEAS in more detail.

2.2 The Common European Asylum System 2.2.1 How the European Asylum System Started

The Common European Asylum system is a legislative framework that was created by the European Union. The CEAS’ main purpose is to regulate and set out common standards

41 Treaty of Amsterdam, Official Journal of the European Communities, C 340.

46 European Parliament. Tampere European Council 15 and 16 October 1999. Precedency Conclusions.

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within the Member States in the EU.⁴⁷ In general the CEAS binds all Member States with the exception of Ireland, Denmark and the United Kingdom. Those three Member States have the option to opt out of the secondary legislation of the CEAS. ⁴⁸

In the late 90’s it became clear that since there are no internal borders within the EU, matters relating to asylum needed to be harmonized at EU level. If there would not be any common rules within the EU, the asylum seekers might take advantage of it. Secondary movement within the Union is a good example. Therefore, in order to prevent the abuse of a defective system the CEAS was created.⁴⁹

It was at the Tampere Declaration that the EU committed to developing a common European asylum system. ⁵⁰ Even though the EU has been working towards a CEAS before, the first time that the actual concept of a Common European Asylum System was brought up at the Tampere Conclusions. That is why the Tampere Conclusions is seen as the starting point of the CEAS.⁵¹

2.2.2 The First Phase of the CEAS

With the idea of a common European asylum system laid down, the first phase of the CEAS was ready to begin. It laid down minimum standards within the EU in regards of asylum laws. According to the Tampere Conclusions, the system should include:

“[…] in the short term, a clear and workable determination of the State Responsible for the examination of an asylum application, common standards for a fair and efficient asylum procedure, common minimum conditions of reception of asylum seekers, and the approximation of rules on the recognition and content of the refugee status.”⁵²

50 Fullerton 2016, page 63.

51 Chetail – De Bryker – Maiani 2016, page 11.

52 European Parliament. Tampere European Council 15 and 16 October 1999. Presidency Conclusions, para 14.

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The Tampere conclusions mentioned that the CEAS should provide common standards. The first phase only provided minimum standards instead of truly common ones. Still, the first phase was a great accomplishment. In five years, six major instruments were adopted.⁵³ The instruments that were adopted in the first phase consisted of two regulations and four directives.

Firstly, the EURODAC Regulation⁵⁴ was adopted in 2000. Then, in 2001 the Temporary Protection Directive⁵⁵ was adopted. In 2003, two other instruments were adopted; the Dublin II Regulation ⁵⁶, and the Reception Conditions Directive⁵⁷. The Qualification Directive⁵⁸ was adopted in 2004 and lastly, the Asylum Procedures Directive⁵⁹ was adopted in 2005.

When compared the first phase directives and regulations to the goals set in the Tampere conclusions we can see, that the goals have been reached quite well. The Dublin II Regulation sets out the rules of which Member States is responsible for the examination of the asylum application. The Reception Conditions Directive sets out the minimum standards that each Member State should provide in housing, food etc. for asylum seekers. The Asylum Procedures Directive ensures that the asylum procedure is efficient and lastly the Qualification Directive lays down the rules for the recognition of refugee status. It can be seen, that all the mentioned criteria were fulfilled in the first phase.

In addition to the criteria that were laid down at the Tampere Conclusions, the EURODAC and the Temporary Protection Directive were given. The EURODAC Regulation helps and

54 Council Regulation (EC) No 2725/2000 of 11 December 2000 concerning the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of the Dublin Convention. Official Journal of the European Union, L 316, 15.12.2000, p.1-10.

55 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. Official Journal of the European Union, L 212, 7.8.2001, p.12-23.

56 Council Regulation (EC) No 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. Official Journal of the European Union, L 50, 25.3.2003.

57 Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers. Official Journal of the European Union, L 31, 6.2.2003, p. 18-25.

58 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. Official Journal of the European Union, L 304, 30.9.2004, p.12-23.

59 Council Directive 2005/85/EC on 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status. Official Journal of the European Union, L 326, 13.12.2005, page 13-34.

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supports the Dublin Regulation as it makes it even more effective. When an asylum seeker applies for asylum, their fingerprints are taken and send to a fingerprint database. So, in case there is obscurity in who is the Member State responsible of the examination of the application, the EURODAC Regulation and the fingerprint database are helpful.⁶⁰

Even though there was no mention of a plan in case of a mass influx, the Temporary Protection Directive was part of the first phase. It was made as a precaution in case a mass influx of displaced persons would come to Europe. Up to this date, said directive has not been used.⁶¹ Even when the masses of asylum seekers started coming to Europe in 2015, the regulation was not adapted.

2.2.3 The Second Phase of the CEAS

It was already mentioned in the Tampere Conclusions that a Second Phase of the CEAS would be made. It was stated that:

“In the longer term, Community rules should lead to a common asylum procedure and a uniform state for those who are granted asylum valid throughout the Union.”⁶²

The aim of the second phase was to make a truly common asylum policy. The first phase of the CEAS gave the grounds on which to build the second phase.⁶³ The first phase of the CEAS laid down minimum standards within the EU and now it was time to build a truly common system.⁶⁴ The Green paper on the future Common European Asylum System states that:

“The ultimate objective pursued at EU level is thus to establish a level playing field, a system which guarantees to persons genuinely in need of protection access to a high level of protection under equivalent conditions in all Member

60 Identification of applicants, https://ec.europa.eu/home-affairs/what-we-do/policies/asylum/identification-of- applicants_en.

61 Temporary protection, https://ec.europa.eu/home-affairs/what-we-do/policies/asylum/temporary- protection_en.

62 European Parliament. Tampere European Council 15 and 16 October 1999 Presidency Conclusions, para.

15.

63 Chetail – De Brycker – Miani 2016, page 17.

64 European Council, The Hague Programme: Strengthening Freedom, Security and Justice in the European Union, 13 December 2004, in [2005] OJ C 53/1, p. 3.

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States while at the same time dealing fairly and efficiently with those found not to be in need of protection”.⁶⁵

In 2009 the Treaty of Lisbon⁶⁶ came into force and with that the Treaty on the Functioning of the European Union⁶⁷ as well. It was notable in regards of asylum. For the first time the concept of a CEAS was part of a binding treaty as the second phase of the CEAS is based on Article 78 of the TFEU.⁶⁸

There were some changes that the second phase brought, but no new regulations nor directives were given. The old ones were only recasted. The CEAS after the second phase consisted of the Temporary Protection Directive⁶⁹ that had not been changed, the Qualification Directive (recast)⁷⁰, the Eurodac Directive (recast)⁷¹, the Dublin III Regulation (recast)⁷², the Reception Conditions Directive (recast)⁷³ and lastly the Asylum Procedures Directive (recast)⁷⁴.

65 COM (2007) 301 final.

66 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community. Official Journal of the European Union, C 206, 17.12.2007, p. 1-271.

67 Treaty on the Functioning of the European Union. Official Journal of the European Union, C 326, 26.10.2012, p. 47-390.

68 An Introduction to the Common European Asylum System for Courts and Tribunals 2016, page 16

69 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. Official Journal of the European Union, L 212, 7.8.2001, p.12-23.

70 Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaires of international protection, for uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast). Official Journal of the European Union, L337, 20.12.2011, p 9-26.

71 Regulation (EU) No 603/2013 of the European Parliament and of the Council of June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third country national or a stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice. OJ L 180, 29.6.2013, p. 1-30.

72 Regulation (EU) No 604/2012 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determinating the Member State responsible for examining an application for international protection lodged in one of the Member States by a third country national or a stateless person.

Official Journal of the European Union. L180/31. 29.6.2013.

73 Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception for applicants for international protection, OJ 180, 29.6.2013, p. 96-116.

74 Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception for applicants for international protection, OJ 180, 29.6.2013, p. 96-116.

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The second phase did not bring major changes, as the directives and regulations were mainly recasted. However, the second phase still brought some added value to the protection of asylum seekers within the European Union. Simultaneously, there are still flaws in the system.⁷⁵ The idea of a truly common system is still to be achieved, some steps were made but the reality of a common system lays somewhere in the future.⁷⁶

The second phase of the CEAS is still in use. The regulations and directives set out in the second phase of the CEAS are the ones that are currently applied in all Member States. The next chapter will discuss the current state of the CEAS.

2.3 The Current State of the European Asylum System

EU asylum laws have developed over the years. Still, the EU is facing big problems with the current masses of asylum seekers. The asylum crisis has shown how vulnerable the current CEAS is and how it needs to reform in order for it to work. Asylum seekers are not treated equally and it encourages for example secondary movements and asylum shopping.⁷⁷ One of the first steps towards a Common European Asylum policy was the Schengen area.

Today, with the asylum crisis at hand the Schengen area and its borders are compromised.

Once a person has entered the Schengen area, they can freely move within the area. That means that once an asylum seeker has entered the EU, they can move within the Schengen area without border controls in-between.

The Schengen Borders Code⁷⁸ offers a possibility for Member States to apply temporary border controls in case there is a serious threat to public policy or internal security.⁷⁹ With the asylum crisis several Schengen countries have brought up the idea of bringing back border controls. Those countries are Belgium, Denmark, Germany, Hungary, Austria, Slovenia, Sweden and Norway. The masses of asylum seekers within the Union have made

75 Toscano 2013, page 36.

77 Reforming the Common European Asylum System, http://www.consilium.europa.eu/en/policies/migratory- pressures/ceas-reform/.

78 Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 in a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code). Official Journal of the European Union, L 77, 23.3.2016, p. 1-52.

79 Temporary Reintroduction of Border Control, https://ec.europa.eu/home-affairs/what-we- do/policies/borders-and-visas/schengen/reintroduction-border-control_en.

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Member States cautious and in fear of a threat to internal security and public order the border controls have been reintroduced.⁸⁰

The free movement of persons is guaranteed in Article 3 (2) of the Treaty on European Union⁸¹, in Article 21 of The Treaty on the Functioning of the European Union⁸² as well as in Article 45 of the Charter of Fundamental Rights of the European Union⁸³. One of the four freedoms of the Union have been compromised since the asylum crisis brought the temporary border controls in the Schengen area. The border checks that the Schengen countries have brought up are legal and in line with the Schengen Borders Code. However, it is the first time that on such large basis the temporary border checks have been used.⁸⁴ The asylum crisis has proven how the Dublin system is flawed. The first problem of the Dublin system is that it does not distribute the responsibility of refugees equally to all Member States. Since the country of first entry needs to examine the application, Member States that are geographically located at the borders of the European Union have a bigger responsibility. Hence, the responsibility falls disproportionately to Member States.⁸⁵

The second problem of the Dublin system is that it is not efficient. Even though it is the country of first arrival that should examine the application, oftentimes applicants seek asylum from a different country. Statistics show, that many people apply asylum in more than one Member State.⁸⁶

The third problem is that the Dublin regulation puts the refugees’ rights at risk. All applications should be examined fairly and efficiently. Unfortunately, that is not the case in all Member States. Different reports have shown the problems. As an example, the problems may be that family ties are not taken into consideration or that asylum seekers who are

80 COM (2016) 120 Final, page 9.

81 Consolidated Version of the Treaty on the European Union. Official Journal of the European Union.

C115/13. 9.5.2008.

82 Consolidated version of the Treaty on the Functioning of the European Union. Official Journal of the European Union. C 326/47. 26.10.2012.

83 Charter of Fundamental Rights of the European Union. Official Journal of the European Communities. C 364/1. 18.12.2000.

84 Fact Sheets on the European Union, Free movement of persons.

http://www.europarl.europa.eu/atyourservice/en/displayFtu.html?ftuId=FTU_4.1.3.html.

85 Garcés-Mascarenas 2015, page 2.

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returned to a different Member State might have to wait over twelve months before their application is examined.⁸⁷

The failure of the Dublin system is not only because of poor implementation by Member States. The problems are in the basic principles. That results that the update of the Dublin Regulation is not enough. The whole thing must be rethought and reformed. The main question being; how can we share the responsibility between Member States.⁸⁸

There has been talks about alternatives to the Dublin regulation. In 2016 the Dublin IV Proposal was given. The new proposals were made, since the current CEAS is proven to be inefficient. Especially the Dublin system puts a lot of pressure onto certain Member States, it encourages secondary movements within the Union and it is in general ineffective. The Dublin Regulation did not work before the crisis let alone during it.⁸⁹

The CEAS as a whole is problematic. The reform of the Dublin regulation has been in talks.

There has been also talks about strengthening the EURODAC system. Its purpose would be broadened so that irregular migration and returns would be easier to cope with. In addition, the other directives of the CEAS would be polished. But not only would the regulations and directives be reformed but also the European Asylum Support Office would be made into a European Union Agency for Asylum. With that change, there would be a better way to address the problems and weaknesses that occurs in the application of the EU’s asylum system.⁹⁰

A brief evolution of EU asylum laws was present. Where it all started and where we are now.

The CEAS is a key element in EU asylum policies, but unfortunately the asylum crisis of 2015 has shown how vulnerable and inefficient it is. The next chapter will present one of the mechanisms to cope with the asylum crisis; the relocation mechanism. The actual relocation process will be explained as well as how the relocations have worked.

89 Maiani 2016, page 29.

90 European Commission, The Common European Asylum System. https://ec.europa.eu/home- affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/background- information/docs/20160713/factsheet_the_common_european_asylum_system_en.pdf.