The European Union has endeavoured to streamline asylum policy throughout the Union through the creation of a Common European Asylum System. This system is currently under great strain due to the surge of refugees and migrants entering the territory of the European Union in large part due to the ongoing conflict in Syria. Consequently, discussions have taken place regarding the viability of the CEAS, with some researchers deeming these discussions to have ‘dominated the EU agenda during 2014-2015’. Many have claimed that the operation of the CEAS is not viable.
However, the magnitude of the current refugee crisis, and the consequent responses to it, demonstrate a pressing need for Union-wide operational instruments with regards to the reception and managing of asylum seekers and migrants. In other words, a Common European Asylum System is still imperative to the optimal functioning of the asylum systems in the EU Member States, albeit not in its in current state.
The situation under CEAS
Perhaps the most significant part of the CEAS is the Dublin Regulation, which stipulates that an asylum seeker must remain in the Member State in which they were initially registered in order to have their application processed. In 2010, 20 years after the implementation of the Dublin regime, the European Asylum Support Office was established in an attempt to ease such pressures. Its role was envisioned to ‘facilitate, coordinate and strengthen practical cooperation among Member States on the many aspects of asylum’ under the umbrella of the CEAS. However, in order to invoke the assistance of EASO a Member State must request it, and the costs of this assistance will be divided equally between the relevant Member State and EASO, drastically diminishing its appeal.
The Syrian refugee crisis
Over 507,000 refugees from Syria entered Europe between April 2011 and September 2015. In 2014, Syrian refugees represented nearly 20% of the total number of refugees entering Europe. The routes of the refugees and migrants entering Europe are a requisite consideration in this regard. In 2014, approximately 219,000 migrants entered Europe through one of the many Mediterranean sea routes. In 2015 this number had increased to over 690,000, of which 53% were Syrians. The vast majority of those migrating through the sea routes have arrived in Greece or Italy, but crucially, there has been a significant shift in the initial country of arrival: in 2014 the vast majority of arrivals by sea had arrived in Italy, whereas in 2015 over 548,000 of the stated 690,000 arrived in Greece. This is a result of the increase in the amount of Syrian refugees arriving in Europe. As the Dublin Regulation provides that an asylum seeker must remain in the Member State in which they lodged their initial application, this has resulted in a particular strain on the reception of migrants and asylum seekers in these peripheral Member States.
Article 17 of the Dublin III Regulation, the ‘sovereignty clause’, provides that a Member State ‘may decide to examine an application’ should they wish to. In 2013, Sweden became the first country to announce they would offer permanent residency to any Syrian refugee who made it there. Germany announced in August of 2015 that they would derogate from the Dublin Regulation on the basis of the provision in Article 17 in relation to Syrian refugees. The Czech Republic shortly followed suit, announcing they would not detain Syrians enroute to Germany. Germany did, however, rather quickly modify their announcement, reinstating controls at German borders.
Both Italy and Greece have received support from EASO in their efforts to cope in the current situation, and this provision of support has been renewed and extended following their initial commencement for both countries. Further, on 27 May 2015 the European Commission presented a legislative proposal establishing certain provisional measures in order to aid Italy and Greece with regards to the reception of asylum seekers and migrants. This was adopted in September of 2015, and declared that 24 000 asylum applicants from Italy as well as 16 000 applicants from Greece would be relocated to other Member States. These provisions will apply until September 2017. This is arguably a step towards rectifying the inadequacies of the Dublin Regulation, but nevertheless constitutes a drop in the ocean, considering the total amount of Mediterranean refugees reached over 1,000,000 in 2015.
EASO Director José Carreira in Lesvos
Also an important consideration in this regard are cases like M.S.S. v. Belgium and Greece and Tarakhel v. Switzerland, brought before the European Court of Human Rights. These held that the return of refugees to certain countries, in spite of the state of legislation under the Dublin Regulation, may be halted on human rights grounds. Furthermore, these cases concerned the return of refugees to, respectively, Greece and Italy. This is a clear indicator that the law under the CEAS is not being adhered to. The cause of this appears to be the current organisation of the Dublin Regulation, as the level of burden-sharing is insufficient in order to manage such an extreme situation as the current migratory influx.
The end of CEAS?
Policy harmonisation is not enough to ensure the functioning of CEAS. The fluctuation in the amount of asylum seekers and migrants, their countries of origin, and accordingly, their migratory routes is evident of this. Consequently, integration of asylum policies in the Member States of a rather large scope is required in order to ensure the success of CEAS. This, coupled with further measures ensuring a more equal distribution of the burden is, however, politically sensitive territory and thus poses great challenges to the policy-makers. Discussions regarding fairer distribution of the burden of asylum seekers have been taking place since the 1990s, and as stated above, some of this has been eased by certain provisional measures. However, studies have concluded that between 15 to 40 percent of asylum applications would need to be transferred between Member States in order to ensure a fair distribution. Some scholars have found this to be the only feasible method in which the cost and responsibilities of the reception of asylum seekers can be fairly and equally distributed.
The comprehensiveness required in order to facilitate and effectively manage the current migratory influx might, in fact, indicate the important, perhaps necessary, role of the CEAS. Nevertheless, a shift is required in its focus as well as its operational methods in order to achieve its goals.
The Syrian refugee crisis is not likely to be the end of the CEAS. However, policy harmonisation as the primary operational instrument for the CEAS is insufficient under the current migratory influx. The extent of this influx instead demonstrates the need for a more comprehensive and integrated system in order to properly manage it in a Union-wide sense. Further, the effectiveness of the role of EASO in assisting the operation of the CEAS is severely restricted as a result of the arrangement of its funding and the need for its presence to be formally requested. The CEAS and EASO have the potentiality of holding great value to the EU and to the functioning of asylum systems in its Member States. However, unless reform is achieved, this may very well spell the end for a common asylum policy for the EU altogether.