The Common European asylum system –

overview of EU´s legal framework

Sofia Pinto Oliveira

Bucharest

11th September 2012

I. Where do we come from?

II. Where are we?

1986

1986 Schengen Agreement

Abolition of internal border controls

Need for a common policy regarding third country nationals

1986

1989

1989/1990 - ECtHR: “Soering” case – application of Art. 3 to an

extradition case

- Dublin Convention – definition of criteria for the determination of the State responsibility for examining asylum applications

1986

1989

1992

1992 - Maastricht Treaty

- Asylum & Immigration (3rd pillar)

1986

1989

1992

1999

1999 - Amsterdam Treaty came into force

- EU legal competence for Justice & Home Affairs - incl. asylum and immigration – moved from national to EU competence (from 3rd to 1st pillar)

- The Tampere Summit – political framework for Amsterdam agenda

1986

1989

1992

1999

2003

2003 - First outcomes from the Amsterdam Treaty

- Directive 2003/9/EC – legislation setting common minimum standards for asylum seekers´ reception conditions

- Dublin II – Regulation EC 343/2003 – allocation of responsibility for examining asylum claims

1986

1989

1992

1999

2003

2004

2004 - Directive 2004/83/EC – establishing a common set of criteria for

determining eligibility for refugee status and subsidiary forms of protection

1986

1989

1992

1999

2003

2004

2005

2005 - Directive 2005/85/EC – defining minimum standards for asylum

procedures

1986

1989

1992

1999

2003

2004

2005

2009

2009 - Lisbon Treaty – aiming for common policy on asylum (art. 78);

common procedure and uniform status valid throughout EU

- increasing role of CJUE

- Charter of Fundamental Rights of EU (2001) entered into force

1986

1989

1992

1999

2003

2004

2005

2009

2010

2010 - European Council adopted the Stockholm Programme for 2010-

2014

1986

1989

1992

1999

2003

2004

2005

2009

2010

2011

2011 - Directive 2011/95/EU adopted, replacing the first Qualification

Directive

- First legal instrument of the second phase of CEAS

Where are we now?

Current legal framework

Dublin II Regulation

Directive 2003/09/EC – Reception Conditions Directive

Directive 2004/83/EC – Qualification Directive (QD)

Directive 2011/95/EU

Directive 2005/85/EC – Asylum Procedures Directive (APD)

Asylum Procedures: Directive 2005/85/EC

Aim: to establish minimum standards for asylum procedures

APD provided a set of minimum safeguards for asylum seekers in the mainstream asylum procedure

Right to an effective remedy against negative first instance decisions.

However admitted wide exceptions and derogations from basic rights

Lack of guarantee of suspensive effect of appeals

Personal interview may be denied in several procedures

Accelerated procedures with reduced safeguards for wide categories of cases

CJEU case-law

Samba Diouf v. Ministre du Travail, de l'Emploi et de l'Immigration (Luxembourg), Case C-69/10, , 28 July 2011.

Questions posed by the Administrative Court:

1. Is Article 39 of Directive 2005/85/EC to be interpreted as precluding national rules (…) pursuant to which an applicant for asylum does not have a right to appeal to a court against the administrative authority's decision to rule on the merits of the application for international protection under the accelerated procedure?

2. If the answer [to the first question] is in the negative, is the general principle of an effective remedy under Community law, prompted by Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, to be interpreted as precluding national rules (…), pursuant to which an applicant for asylum does not have a right to appeal to a court against the administrative authority's decision to rule on the merits of the application for international protection under the accelerated procedure?

How did the CJEU answer?

„42. The decisions against which an applicant for asylum must have a remedy under Article 39(1) of Directive 2005/85 are those which entail rejection of the application for asylum for substantive reasons or, as the case may be, for formal or procedural reasons which preclude any decision on the substance.

43. It follows that decisions that are preparatory to the decision on the substance or decisions pertaining to the organisation of the procedure are not covered by that provision.“

The compatibility of rules such as those at issue in the main proceedings with the right to an effective judicial remedy

“55. The decision relating to the procedure to be applied for the examination of the application for asylum, viewed separately and independently from the final decision which grants or rejects the application, is a measure preparatory to the final decision on the application.

56. Accordingly, the absence of a remedy at that stage of the procedure does not constitute an infringement of the right to an effective remedy, provided, however, that the legality of the final decision adopted (…) may be the subject of a thorough review by the national court, within the framework of an action against the decision rejecting the application.”

Asylum Procedures Recast (June 2011)

What´s new?

New provisions enhancing access to the procedure

Information on the possibility to request international protection

Clear reasons for decisions, even in case of positive decisions

Less grounds for omitting personal interviews

Effective remedies – in principle, suspensive effect mus apply OR al leasta right to request suspensive effect

Art. 39/5 and 6 APD Recast

“(…) Member States shall allow applicants to remain in the territory until the time limit within which to exercise their right to an effective remedy has expired or, when this right has been exercised within the time limit, pending the outcome of the remedy.

In the case of a decision to consider an application unfounded (…) or of a decision to consider an application inadmissible (…) and where, in such cases, the right to remain in the Member State pending the outcome of the remedy is not foreseen under national legislation, a court or tribunal shall have the power to rule whether or not the applicant may remain on the territory of the Member State, either upon request of the concerned applicant or acting on its own motion.”

Reception Conditions: Directive 2003/9/EC

InfAim: lay down common minimum standards for reception of asylum seekers.

Member States required to provide: Information on rights

Documentation which certificates legal stay

Freedom of mouvement / residence within MS, subjected to limits

Family unit

Education

Employment, if no decision after 12 months

Necessary health care and material conditions (housing, subsistance, etc.)

CJEU Case-law

Application, throughout the duration of the procedure for taking charge of them or for taking them back by that other Member State? CIMADE and GISTI v. Ministry of Interior (France), Case C-179/11, pending. Main question posed by the Conseil d’Etat:

Does Council Directive 2003/9/EC of 27 January 2003 [1] guarantee the minimum reception conditions to which it refers to applicants in respect of whom a Member State in receipt of an application for asylum decides, under Council Regulation (EC) No 343/2003 of 18 February 2003, [2] to refer a request to another Member State which it deems to have jurisdiction to examine that asylum.

Opinion of the Advocate-General Sharpston (delivered on 15 May 2012)

Asylum seekers under Dublin II Regulation cannot be excluded.

Reception Conditions Recast (June 2012)

What´s new?

Closer regulation of detention

Grounds for detention defined

Proportionality test

Specialised detention facilities

Judicial review of the detention (after 72 hours and at reasonable intervals)

Earlier access to the labour market (after 6 months)

Higher levels of material assistance for asylum seekers

Qualification Directive

Actual reference: Directive 2004/83/EC

Aim: to establish a common set of criteria for determining eligibility for refugee status and subsidiary protection.

QD incorporates the Geneva Convention definition into EU law Art. 2/c: «refugee» means a third country national who, owing to a well-

founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it.

QD creates an obligation to grant subsidiary protection falling out the scope of the refugee definition, but in need of international protection: Art. 15: Protection of persons at real risk

oDeath penalty or execution;

o Torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; OR

o Serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.

QD defines the content of the protected status Refugees generally entitled to 1951 Convention rights

Subsidiary protection beneficiaries: o shorter duration of residence permit

o Social assistance may be limited to ‘ core benefits’

CJEU case-law

Elgafaji v. Staatssecretaris van Justitie, C-465/07, 17 February 2009.

Art 15/c) – protection from generalized violence

Is there a need to show individual threat?

The Court answered that people fleeing indiscriminate violence in armed conflicts must show individual threat to varying degree, depending on the level of violence.

“The existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat.”

Z & Y (Germany), C-71/11 and C-99/11, 5 September 2012.

Main question posed was about persecution on religious grounds.

If the person concerned can profess her/his religion in the areas of the home and neighborhood, can we consider she/he being subjected to persecution?

The Court answered that: Persecution on religious grounds must be a ‘severe violation’ of

religious freedom having a significant effect on the person concerned. “

Severity is not to be assessed by distinguishing if there is interference with ‘core areas’ (‘forum internum’) of the basic right to freedom of religion, or with religious activities in public (‘forum externum’)“

There may be an act of persecution as a result of interference with external manifestations of religious freedom.

It is the severity of the measures and sanctions adopted or liable to be adopted against the person concerned which will determine whether a violation of the religious freedom constitutes persecution, taking in account subjective and objective circumstances.

B & D (Germany), Cases C-57/09 and C-101/09, 9 November 2010

Main question posed: Exclusion clause: serious non-political crimes

Does it constitute a serious non-political crime or an act contrary to the purposes and principles of the United Nations (…) if : o the person seeking asylum was a member of an organisation which is

included in the list of persons, groups and entities annexed to the Common Position [2001/931] and employs terrorist methods, and the appellant has actively supported that organisation’s armed struggle? (Case C-57/09)

o a foreign national was for many years involved as a combatant and an official – including for a time as a member of its governing body – in an organisation (in this case, the PKK) which repeatedly employed terrorist methods in the armed struggle waged against the State (in this case, Turkey) and is included in the list of persons, groups and entities annexed to the … Common Position [2001/931], and the foreign national thereby actively supported its armed struggle in a prominent position? (Case C-101-09)

The Court answered that being membership of a terrorist organisation without more does not justify exclusion

necessary assessment on a case-by-case basis of the specific facts

Abdulla (Germany), Cases C 175/08, C 176/08, C 178/08 and C 179/08, 2 March 2010 Main question posed:

Cessation of refugee status

What are the evidential standards to be applied in these circumstances?

The Court answered that cessation was applicable in case of significant, lasting change in country of origin, with existence of an operational legal system for the detection, prosecution and punishment of acts constituting persecution.

Qualification Directive Recast

What´s new?

Clarification of concepts as “actors of protection”, “internal protection” and “membership of a particular social group”, in particular as regards gender-related aspects of persecution;

Best interest of the child to be taken in account when assessing asylum applications

Approximation of the rights of refugees and beneficiaries of subsidiary protection with regard to family unit, access to employment and health care – but not regarding the duration of residence permits.

Thank you!