Asylum and irregular immigration in the EU: state of play

Recent events in the Mediterranean have seen many migrants dying off the shores of Italy, Malta and Spain. Many voices call for a more coherent approach to asylum and irregular immigration in the EU to achieve a balance between the legitimate interests of people seeking security and/or better living conditions, and the need to keep national infrastructure from being overwhelmed, as well as to ensure citizens’ trust in an area of free movement without internal borders.

Common European Asylum System (CEAS)

Major progress was made towards greater harmonisation of asylum rules across the EU in 2013, with the completion of the second phase of the CEAS after five-year negotiations. Five key acts were amended in this second asylum package: the Qualification Directive (2011), Reception Conditions Directive, Asylum Procedure Directive, EURODAC Regulation and Dublin III Regulation. The package sought to address the challenges resulting from massive migratory pressure on certain Member States due to their geopolitical situation. In addition, these countries have been particularly hard hit by the economic crisis, while the conflicts in North Africa also added to the complexity of the situation.

The Dublin II Regulation was seen as one of the structural problems of EU asylum policy. It established that, by default, the first Member State an asylum-seeker entered is responsible for examining their application for international protection. This means that an asylum-seeker who moves to another Member State is automatically transferred back to the Member State at the EU’s external borders. The 2013 Dublin III Regulation takes account of judgments of the European Court of Human Rights and the Court of Justice of the EU demanding that asylum-seekers are not transferred to a Member State with systematic deficiencies in asylum procedures or in the reception conditions of asylum-seekers. Although no agreement could be reached on a formal procedure for suspending such transfers, the European Parliament succeeded in including an express reference to protection of asylum-seekers’ human rights. Moreover, an early-warning mechanism was established to prevent pressure on the asylum systems of Member States experiencing difficulties coping with a surge of migrants. The new Dublin Regulation entered into force in January 2014.

Despite these positive developments, commentators agree that the ‘Dublin system’ of responsibility for asylum applications in the EU has not been radically changed, so that Member States at the EU’s external borders remain burdened. Many argue that this structural shortcoming will not be resolved by the new early warning mechanism. However, experts point to the need now to focus on effective implementation of the newly adopted legislation in the Member States, rather than making further modifications. In addition, there have been calls to give asylum-seekers the possibility to apply for asylum from outside the EU, preventing them from undertaking dangerous journeys. The European Commission has proposed that ‘humanitarian corridors’ for the provision of humanitarian visas to people in danger be set up at Member State consulates in third countries. The creation of legal channels for EU entry has also been demanded by Parliament.

Irregular immigration: need for a holistic approach

The EU’s legal framework for irregular immigration is scattered over many legal instruments. Those which apply at the point of a migrant’s arrival focus on border surveillance, return of irregular immigrants and cooperation on readmission with third countries of origin and transit, as well as on preventing irregular

immigrants departing to Europe. Cooperation with third countries plays a major role in the EU’s action against irregular immigration. Mobility partnerships (e.g. with Tunisia and Morocco) seek to commit third countries to increasing the surveillance of their coastlines and to prevent boats with irregular immigrants from departing. In return, visas are made easier to obtain. Moreover, the EU has allocated development aid to address the causes of immigration, with migration and development being a priority area of the Global Approach to Migration and Mobility (GAMM) initiative. EU law also provides for penalties for those facilitating the unauthorised access of migrants to EU territory, inter alia through smuggling and trafficking, in the Facilitation Directive, the Directive on Trafficking in Human Beings and the Carrier Sanctions Directive.

The focus on security concerns of these EU instruments has led many to claim that the EU is becoming “Fortress Europe“. Experts claim that EU immigration policy is one-sided and demand more coherent EU policy as well as EU-wide channels for legal labour migration to meet Member States’ demographic challenges. The European Parliament has called for a more holistic approach to migration in order to ensure that issues linked with migration can be dealt with in a comprehensive manner. However, the issue remains highly controversial. Many defend a predominantly national approach and point to an influx of immigrants overburdening national infrastructure, a problem exacerbated bythe economic crisis.

Mixed migration and ‘push-backs’

Due to mixed flows of asylum-seekers and irregular immigrants, it is often difficult for national authorities to establish on immigrants’ arrival or interceptionat sea whether they are irregular immigrants or persons entitled to seek international protection. Asylum-seekers cannot be refused entrance at borders nor be returned to a third country if there is a risk of persecution or other serious harm. This is the principle of non-refoulement established by the 1951 Geneva Refugee Convention and incorporated into EU law (Article 78(1) TFEU). Commentators and NGOs criticise ‘push-backs’ at sea and the refusal of entry at borders as possibly violating the principle of non-refoulement. Member States claim however that ‘push-backs’ at sea do not violate the principle of non-refoulement as the potential asylum-seekers have not yet arrived at their borders. Parliament and Council agreed, after long negotiations including Parliament’s complaint before the Court of Justice of the EU, on search and rescue rules for operations coordinated by Frontex. Parliament is credited with reinforcing the principle of non-refoulement by prohibiting ‘push-backs’ of intercepted migrants to unsafe countries. The fundamental rights of asylum-seekers and immigrants will also be strengthened, inter alia through the obligation to identify intercepted migrants to ensure protection of vulnerable persons such as unaccompanied minors and victims of trafficking.

Support from the EU and solidarity between Member States

Despite the progress of the second asylum package, many claim that the structural problems leading to an overburdening of some Member States can be tackled only by greater EU support and solidarity from those less affected. Solidarity however remains subject to the conflicting interests of Member States. In this context, Mediterranean Member States have repeatedly called for fair distribution of asylum-seekers among Member States. Currently there is an ad hoc intra-EU relocation programme in place for Malta (EUREMA II project) with Member States volunteering, but only reluctantly, to take asylum-seekers. Calls from the EP, e.g. the 2012 report of the Civil Liberties Committee (rapporteur Kyriacos Triantaphyllides, GUE/NGL, Cyprus), to establish a permanent relocation mechanism, have met opposition from several Member States which fear that relocation might become a pull factor for migrants.

The EU provides support to Member States under pressure of migration through its Frontex agency and the European Asylum Support Office (EASO). Frontex coordinates joint operations and, if requested by a Member State, can deploy rapid border interventions (RABIT) through European Border Guard Teams. EASO supports practical cooperation on asylum among Member States and helps them eliminate deficiencies in their asylum systems. The EU also provides financial support to Member States under particular migration pressure. The four funds in this area, including the External Borders Fund and the European Refugee Fund, will be replaced by a new Asylum, Migration and Integration Fund (AMIF) (rapporteur Sylvie Guillaume, S&D, France) with a total budget for 2014-20 of €3.1 billion. Member States will be obliged to allocate at least 20% of the funds to asylum measures and another 20% to support legal migration and promote the integration of migrants. In a statement accompanying the AMIF regulation, Parliament stresses that the fund, as well as other instruments, need also to be based on the principle of solidarity, enshrined inter alia in Article 80 TFEU.