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Surveying the Foundations: Article 80 TFEU and the Common European Asylum System

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Abstract

The Treaty of Lisbon introduced Article 80 of the Treaty on the Functioning of the European Union (TFEU) which states that the European Union’s asylum policy will be based on the principles of solidarity and the fair-sharing of responsibility. However, no guidance is given as to the nature and content of these principles. This contribution seeks to explore the relationship between these two concepts and to assess the extent and nature of their presence within the Common European Asylum System (CEAS). This contribution begins with an outline of the CEAS and presents its newly-codified foundation, Article 80 TFEU. This reveals that the CEAS may be considered a solidarity mechanism, but that the essential uncertainty as to the meaning of Article 80 is problematic when attempting to gauge the success of the CEAS as an expression of solidarity. The second part considers methods for allocating responsibilities for refugee status determination and protection between states, demonstrating that fair-sharing is both more widely accepted as the basis for solidarity and less problematic than the most common alternative—allocation according to states’ voluntary assumptions of responsibility. The final part explores expressions of fair-sharing within the CEAS and considers its limited success and numerous flaws.

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Notes

  1. Joined Cases of C-411/10N. S. v Secretary of State for the Home Department and C-493/10M. E. and Others v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform, Judgement of 21 December 2011 of the Court of Justice of the European Union (CJEU).

  2. Ibid.

  3. Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of mass influx of displaced persons a on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, OJ 2001 L212/12 (temporary protection Directive). The existence of a mass influx and resulting necessity to operate the provisions of the Directive are to be determined by Council Decision on the proposal of the Commission, (Article 5(1)). The Commission is to examine any requests from Member States that it make such a proposal, (Article 5(1)).

  4. Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, OJ 2005 L326/13.

  5. 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, OJ 2004 L304/12.

  6. Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, OJ 2003 L31/18.

  7. 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, OJ 2003 L50/1 (Dublin II).

  8. Current period operating under Decision No 573/2007/EC of the European Parliament and of the Council of 23 May 2007 establishing the European Refugee Fund for the period 2008–2013 as part of the General programme ‘Solidarity and Management of Migration Flows’ and repealing Council Decision 2004/904/EC, OJ L144/1 (ERF Decision 2007).

  9. ERF Decision 2007, Article 1; Decision No 574/2007/EC (External Borders Fund), Decision No 575/2007/EC (European Return Fund), Decision No 2007/435/EC (European Fund for the Integration of Third Country Nationals).

  10. Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast), OJ 2013 L180/96 (recast reception conditions Directive); 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), OJ 2013 L180/60 (recast asylum procedures Directive); 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 beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), OJ 2011 L337/9 (recast qualification Directive).

  11. Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 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, OJ 2013 L180/31 (Dublin III Regulation).

  12. Proposal for a Regulation of the European Parliament and of the Council establishing the Asylum and Migration Fund, COM(2011) 751 final, (Proposed AMF Regulation).

  13. Recast asylum procedures Directive, Article 14.

  14. Recast qualification Directive, Article 2(j); recast reception conditions Directive, Article 2(c).

  15. Supra n. 1.

  16. Established on the same facts in MSS v Belgium and Greece, Application no. 30696/09, European Court of Human Rights, decision published 21 January 2011, at paragraphs 366–368.

  17. Supra n. 1 at paragraph 103.

  18. This instructs that a refugee, or someone that may be a refugee, shall not be removed to a state where his life or freedom would be at risk for reason of his race, religion, nationality, membership of a particular social group or political opinion (Article 33 of the Geneva Convention Relating to the Status of Refugees 1951).

  19. This is visible on a global scale in that more than three quarters of the world’s refugees live in Africa and Asia (Refugee Council 2013).

  20. “This study looks at differences in asylum related costs and pressures between Member States, allowing for a discussion on which of these costs should be shared at European level. Finally, this study examines policy options for how these costs could be shared between Member States.” (European Parliament 2010: 1).

  21. Australia, Canada, Denmark, Finland, the Netherlands, New Zealand, Norway, Sweden, Switzerland and the US.

  22. Agreement between the Government of Canada and the Government of the United States of America for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries 2002 (the Canada-US Agreement, or the Agreement).

  23. Canada-US Agreement, Article 4(1). Defined as, “that country, being either Canada or the United States, in which the refugee claimant was physically present immediately prior to making a refugee status claim at a land border port of entry,” Canada-US Agreement, Article 1(1)(a).

  24. Canada-US Agreement, Article 4(2).

  25. Canada-US Agreement, Article 4(2)(a) and (b). Listed as, “the spouse, sons, daughters, parents, legal guardians, siblings, grandparents, grandchildren, aunts, uncles, nieces and nephews,” Canada-US Agreement, Article 1(1)(b).

  26. Canada-US Agreement, Article 4(2)(c). Defined as “an unmarried refugee status claimant who has not yet reached his or her eighteenth birthday and does not have a parent or legal guardian in either Canada or the United States,” Canada-US Agreement, Article 1(1)(c).

  27. Canada-US Agreement, Article 4(2)(d)(i).

  28. Canada-US Agreement, Article 4(2)(d)(ii).

  29. 2005, the only year for which full figures are currently available.

  30. All of the twenty-three were excepted on family grounds.

  31. The decision of the UK to exercise its entitlement to ‘opt-out’ of the second phase of harmonisation Directives may mean that ‘sharing norms’ will become a question of fair-sharing, but a substantial examination of this is outside of the scope of this contribution.

  32. The AMF is due to replace the current ERF in 2014. However, at the time of writing, the text of the proposed AMF Regulation is yet to be finalised and adopted. Therefore, the ERF will be considered together with anticipated changes under the AMF.

  33. Council Decision 2000/596/EC of 28 September 2000 establishing a European Refugee Fund, OJ L252/12 (ERF Decision 2000).

  34. ERF Decision 2000, Article 10; Council Decision 2004/904/EC of 2 December 2004 establishing the European Refugee Fund for the period 2005 to 2010, OJ L381/52, Article 17; ERF Decision 2007, Article 13.

  35. ERF Decision 2007, Article 13(1).

  36. ERF Decision 2007, Article 13(2)(a).

  37. ERF Decision 2007, Article 13(2)(b).

  38. Proposed AMF Regulation, Article 15(1)(a) and Annex I; Article 15(1)(b).

  39. There are eight Specific Actions listed, including by way of example, “(1) Establishment and development in the Union of transit and processing centres for refugees, in particular to support resettlement operations in cooperation with the UNHCR… (7) Joint initiatives aimed at restoring family unity and reintegration of unaccompanied minors in their countries of origin”.

  40. Proposed AMF Regulation, Recital 3.

  41. Proposed AMF Regulation, Article 3(2)(d).

  42. References herein to ‘Dublin’ are to the provisions of the Dublin III Regulation, which will replace the Dublin II Regulation from 1 January 2014 (Dublin III, Article 49). However, the provisions considered here have not materially changed under Dublin III (other than applying to beneficiaries of and applicants for subsidiary protection as well as refugee status) and therefore the comments made are equally applicable under both Regulations.

  43. Dublin III, Article 3(1).

  44. Dublin III, Article 9.

  45. Dublin III, Article 10.

  46. Dublin III, Article 12(1).

  47. Dublin III, Article 12(2).

  48. Dublin III, Article 12(3).

  49. Dublin III, Article 13(1).

  50. Dublin III, Article 13(2).

  51. Dublin III, Article 14.

  52. Dublin III, Article 15.

  53. Dublin III, Article 3(2).

  54. Dublin III, Article 17(1).

  55. ELENA (European Legal Network on Asylum) Co-ordinators.

  56. Question C 1. “The sovereignty clause enables a MS to take over responsibility for an asylum claim lodged with it, even where another state is responsible under the Regulation. Is the sovereignty clause being applied and if yes, in what cases (e.g. where the responsible state is not considered safe)?” (ECRE 2006: 17).

  57. Although not an EU Member State, Norway is party to the Dublin Regulation as part of the Schengen acquis, a position shared by Iceland and Switzerland.

  58. Under Dublin II, Article 15 contained unified provisions for the bringing together of family members or the assumption of responsibility for other humanitarian reasons. Under Dublin III, the provisions have been reorganised and separated but remain similar. The provisions concerning assumption responsibility on humanitarian grounds are found in Article 16(1) of Dublin III. The former Article 15(3), stating that “Member States shall if possible unite the [unaccompanied] minor with his or her relative”, has been moved to the new Article 8(2), making it part of the hierarchy of responsibility criteria specifically concerning unaccompanied minors.

  59. Dublin III, Article 16(1).

  60. Case C-245/11K v Bundesasylamt, Judgement of 6 November 2012 at paragraph 51. At paragraph 55, the CJEU deemed it unnecessary to answer whether an assumption of responsibility under Article 3(2) would be similarly automatic and obligatory in the event of a breach of fundamental rights by the prima facie responsible state.

  61. Temporary protection Directive, Article 25(1).

  62. Ibid.

  63. Temporary protection Directive, Article 25(3).

  64. No proposal to use the Directive was made in respect of those displaced from North Africa, and from Libya particularly, in 2011, despite requests from Italy (Italian Ministry of Foreign Affairs 2011). Fargues and Fandrich (2012) highlight that the numbers of persons in need of protection arriving from the Arab Spring in Europe were approximately double the average figure for previous years, but were not the hundreds of thousands indicated by Italy.

  65. Temporary protection Directive, Article 26(1).

  66. Ibid.

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  1. School of Law and Social Justice, University of Liverpool, Muspratt Building, Liverpool, L69 3GB, UK

    Harriet Gray

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Gray, H. Surveying the Foundations: Article 80 TFEU and the Common European Asylum System. Liverpool Law Rev 34, 175–193 (2013). https://doi.org/10.1007/s10991-013-9138-8

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