Convergence and Mutual Recognition in European Asylum Law
8.2 The European Asylum Regime
8.2.1 Background: Developments Towards and Reasons for a Common System
The Treaty of Amsterdam transferred legislative competence in the field of asylum to the European Union.4 This made the asylum practices and legislation of the Member States into objects of unification and europeani-sation, and inaugurated the process of the voluntary internationalisation of asylum law.5
4Issues of asylum and migration were with the Treaty of Amsterdam transferred to Title VI of the Treaty on the European Union, which in practice implied that questions linked to asylum and immigration were transferred from the sphere of cooperation government-to-government to the sphere of supra-national, EU, legislative competence. For accounts of the legislative developments in the field of asylum and immigrationseeSteve Peers, Framework of EC Immigration and Asylum Law in Peers, Steve and Rogers, N (eds.):
EU Immigration and Asylum LawMartinus Nijhoff Publishers, 2006 and Hemme Bat-tjes:European Asylum Law and International Law, Martinus Nijhoff Publishers, 26–
33 (2006).
5For an analysis of the concept of EuropeanisationseeSatu Paasilehto,Constellations a New Approach to Legal Culture and European Integration of Private Law, Helsinki, 161–165 (2002).
At the time, many different approaches to the task could have been adopted. The European Union chose, however, to pursue for a program of full scale harmonisation, including legislative, practical and judicial-procedural harmonisation, and the Union has persisted in this approach.6
The Tampere Conclusions of 1999 firmly state that the objective for the adaptation of the European asylum regime to the needs of the region is the creation of “a common European asylum system” (CEAS) including a com-mon asylum procedure (CEAP) and a uniform status for recognized refugees and persons benefiting from subsidiary protection in Europe.7 This maxim has become the mantra for those pursuing the European Union integration in the field and has also been reaffirmed by the European Commission as the general goal for future developments.8
The objective of a common procedure and a uniform status creates a strong incentive for harmonisation of the member states’ asylum and im-migration procedures and policies. First, there is the common procedure to be established.9 It is not quite clear what this common procedure will include, and the Green Paper issued recently by the Commission invites a discussion and further public elaboration of the contents of this common procedure.10However, it has become clear that this will include: a common procedural, structural and perhaps also an institutional ground for judicial decision-making in asylum matters; a common understanding and use of the devices and concepts that are inherent to the European discussion on asylum; and possibilities for joint processing and shared technical support-functions, such as databases and sources of country of origin-information.
Additionally, persons granted asylum status through the CEAP will receive the same benefits and rights throughout the union, because uniform status that is a part of the CEAS.11
6For general accounts of the harmonisation carried out in the field of asylum in Europe seeHarlow, Carol and Guild, Elspeth (eds.)Implementing Amsterdam, Hart Publications 2001; Rosemary Byme, Noll Gregor & Vedsted-Hansen, Jens:New Asylum Countries?
Migration Control and Refugee Protection in an Enlarged European Union, Kluwer Law International 2002 and Brinkmann, Gisbert: The Immigration and Asylum Agenda 10 Eur. Law J. 182–199 (2004).
7The European Council Summit in Tampere, Finland 1999 set out the practical struc-tures for the work towards harmonisation in the field of Justice and Home Affairs in the European Union.Seethe Presidentiary Conclusions of the Tampere European Council 15–16.10.1999, section 15.
8European Commission:Green Paper on the Future Common European Asylum Sys-tem, COM(2007)301 final, 2–3. The green papers issued by the Commission are designed to communicate the views of the Commission and to launch public consultations on the matter regarded.
9Ibid., section 13 and Frances Nicholson,Challenges to Forging a Common European Asylum System in Line with International Obligationsin Peers et al., 2006; Battjes 2006, 195–218 and Vedsted-Hansen, Jens:Common EU Standards on Asylum, 7 Eur. J.
Migration L. 369–376 (2005).
10Supranote 8, at 4.
11Supranote 7, section 14 and Battjes at 447–530 (2006).
Clearly, the prime reason for making the CEAS a primary goal for the regional internationalisation is economic. If a well-functioning common procedure and a uniform asylum status were put in place in Europe, the incentives for asylum seekers to try their luck in numerous jurisdictions would be diminished. Thus, Europe would face fewer total asylum applica-tions and lower the costs that arise from sending and receiving persons be-tween the member countries.12Additionally, some of the “administrative”
obligations closely connected to national asylum procedures, such as fact-finding and the production of country of origin information, could easily be centralized if the standards and the needs of the procedures regionally were harmonised.
Further reasons for far-reaching harmonisation in the field of asylum and immigration can easily be found in considerations relating to the impact of a CEAS on the self-perception of the Union. Divergences between the Member States in this respect are bound to add to perceptions of inequality and badly distributed burdens. The CEAS also has important implications for the external perception and image of the European Union.
The challenges facing the Union’s development towards the CEAS are twofold: On the one hand there are formal and institutional questions to be raised in connection with transfer of powers in the asylum procedure from the purely national to the European level. These questions can be and are often posed irrespective of the substantive area of law effected by the transfer.13On the other hand, there are also some implications particular to the subject area of immigration law and especially asylum law. These impli-cations are connected to the bond between the nation state, its sovereignty and judicial decisions that include both the acceptance of a new member in to the national society and a statement on the failure of another state to protect its citizens.14As we will see, these challenges have made the task of harmonisation very difficult for the European Union—so difficult that the Union has not been particularly successful in overcoming them.
12On the economic incentive to burden sharingseeEiko R. Thielemann,Between In-terests and Norms: Explaining Burden-Sharing in the European Union, 16 J. Refugee Studies, 253–273 (2003).
13European courts have often been faced with the issue relating to the allocation of the competence to allow for EU competence over national.See, for instance the dis-cussion after the famous Maastrich decision,Manfred Brunner and others v. The Eu-ropean Union Treaty, BvG 2134/92 & 2159/92, by the German Budesverfassungsgericht in Joachim Wieland, Germany in the European Union –The Maastricht Decision of the Bundesverfassungsgericht, 5 Eur. J. Intl. L. 1–8 (1994).
14The non-aggressive character of decision making in asylum matters is a principle commonly recognized and accepted in international law. However, this do not imply that considerations relating to effects of a decision outside the host country are absent from the procedure. Atle Grah-Madsen,The Status of Refugees in International Law II Asylum, Entry and Sojourn, Sijthoff, Leiden, 26–31 (1972).
8.2.2 Measures of Convergence in the Work Towards the CEAS
The practical aspects of development towards a common procedure and uniform status were divided at the Council meeting in Tampere into two phases: A first phase encompassing the passing of harmonising directives and regulations,15 ending in 2004, and a second phase ending in 2010 encompassing the practical development and integration of asylum proce-dures of Europe.16
During the first phase, a number of measures were taken and binding community legislation was passed both in relation to the substantive issues of international protection in Europe and in relation to the more formalis-tic and procedural aspects of their implementation in the Member States.
Specific regulations and directives were issued on burden sharing,17 defini-tions and eligibility,18reception conditions19and the procedural aspects of refugee status determination.20
These legislative acts and their impact in the Member States are at the moment under evaluation. Prior to the evaluation the Commission estab-lished some general goals for enhanced harmonisation during the second phase of legislation. These include enhancing practical cooperation be-tween the Member States by developing technical standards, and requir-ing a study of the possibility of developrequir-ing joint processrequir-ing centres and a pan-European support office to help to implement them.21