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Liverpool Law Review

, Volume 34, Issue 3, pp 175–193 | Cite as

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

  • Harriet Gray
Article

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.

Keywords

Common European Asylum System (CEAS) Article 80 Solidarity Burden-sharing Dublin III 

References

  1. 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. http://www.cic.gc.ca/english/department/laws-policy/safe-third.asp. Accessed June 19, 2013.
  2. Boccardi, I. 2002. Europe and refugees, towards an EU asylum policy. London: Kluwer Law International.Google Scholar
  3. Directorate-General for Internal Policies ‘Citizens’ Rights and Constitutional Affairs. 2010. What system of burden-sharing between member states for the reception of asylum seekers?. Brussels: European Parliament.Google Scholar
  4. ECRE. 2006. Report on the application of the Dublin II regulation in Europe.Google Scholar
  5. ECRE. 2012. Comments and recommendations of the European Council on refugees and exiles on the commission proposals on the future EU funding in the area of migration and asylum. Google Scholar
  6. Fargues, P., and C. Fandrich. 2012. Migration after the Arab Spring. San Domenico di Fiesole: European University Institute, Robert Schuman Centre for Advanced Studies.Google Scholar
  7. Hathaway, J.C., and A. Neve. 1997. Making international refugee law relevant again: A proposal for collectivized and solution-orientated protection. Harvard Human Rights Journal 10: 115–211.Google Scholar
  8. Hurwitz, A. 2009. The collective responsibility of states to protect refugees. Oxford: Oxford University Press.CrossRefGoogle Scholar
  9. Italian Ministry of Foreign Affairs. 2011 (30 March). Immigration emergency: The EU must adopt a refugee distribution plan, says Frattini. http://www.esteri.it/MAE/EN/Sala_Stampa/ArchivioNotizie/Approfondimenti/2011/03/20110330_emergenza_immigrazione.htm. Accessed August 08, 2013.
  10. Kritzman-Amir, K. 2009. Not in my backyard: On the morality of responsibility sharing in refugee law. Brooklyn Journal of International Law 34(2): 355–393.Google Scholar
  11. Legomsky, S.H. 2003. Secondary asylum movements and the return of asylum seekers to third countries: The meaning of effective protection. International Journal of Refugee Law 15: 567–677.CrossRefGoogle Scholar
  12. Loescher, G. 2001. The UNHCR and world politics: A perilous path. Oxford: Oxford University Press.CrossRefGoogle Scholar
  13. Noll, G. 2000. Negotiating asylum, the EU Acquis, extraterritorial protection and the common market of deflection. The Hague: Martinus Nijhoff.Google Scholar
  14. Noll, G. 2002. Protection in a spirit of solidarity? In New asylum countries? Migration control and refugee protection in an enlarged European Union, ed. R. Byrne, G. Noll, and J. Vedsted-Hansen, 305–324. The Hague: Kluwer Law International.Google Scholar
  15. Refugee Council. 2013. Tell it like it is. http://www.refugeecouncil.org.uk/tellitlikeitis. Accessed August 05, 2013.
  16. Rutinwa, B. 1996. The Tanzanian Government’s response to the Rwandan emergency. Journal of Refugee Studies 9: 291–303.CrossRefGoogle Scholar
  17. Schuck, P.H. 1997. Refugee burden-sharing: A modest proposal. Yale Journal of International Law 22: 243–297.Google Scholar
  18. Solberg, M. 2006. Partnership for protection; year one review. Citizenship and immigration Canada. http://www.cic.gc.ca/english/department/laws-policy/partnership/index.asp. Accessed July 29, 2013.
  19. Suhrke, A. 1998. Burden sharing during refugee emergencies: The logic of collective versus national action. Journal of Refugee Studies 11: 396–415.CrossRefGoogle Scholar
  20. Tampere European Council. 1999. Presidency conclusions of 15 and 16 October 1999. European Parliament. http://www.europarl.europa.eu/summits/tam_en.htm#intro. Accessed August 04, 2013.
  21. Taylor, S. 2005. The pacific solution or a pacific nightmare? The difference between burden shifting and responsibility sharing. Asian-Pacific Law and Policy Journal 6(1): 1–43.Google Scholar
  22. Thieleman, E. 2004. Why European policy harmonisation undermines refugee burden-sharing. European Journal of Migration and Law 6(1): 47–65.CrossRefGoogle Scholar
  23. Thielemann, E. 2005. Symbolic politics or effective burden-sharing? Redistribution, side-payments and the European refugee fund. Journal of Common Market Studies 43(4): 807–824.CrossRefGoogle Scholar
  24. Towle, R. 2006. Process and critique of the Indo-Chinese comprehensive plan of action: An instrument of burden-sharing. International Journal of Refugee Law 18: 537–570.CrossRefGoogle Scholar
  25. UNHCR. 2012. Progress report on resettlement. Executive Committee of the High Commissioner’s Programme, 54th Meeting of the Standing Committee. http://www.unhcr.org/5006a6aa9.html. Accessed July 29, 2013.

Copyright information

© Springer Science+Business Media Dordrecht 2013

Authors and Affiliations

  1. 1.School of Law and Social JusticeUniversity of LiverpoolLiverpoolUK

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