AU Watch

European Framework for Refugee Protection

1. The Council of Europe

Main Debate

  • Should the Council of Europe play a greater role in standard setting in the area of asylum in a wider pan-European context?

Main Points

  • Binding v. non-binding regional instruments
  • Committee of Ministers recommendations v. Parliamentary Assembly resolutions
  • Establishing harmonization between EU and non-EU states

Main Debates

  • Refugee protection under regional v. universal treaties
  • Subsidiary protection under human rights treaties – a potential challenge to the primacy of the 1951 Convention?
  • Has the European Court of Human Rights (ECtHR) exhibited too much or too little deference to national refugee decision-making bodies?

Main Points

  • Scope of protection against refoulement under Art.3 of the ECHR v. Arts. 1 and 33 of the 1951 Convention
  • Effective remedies for rejected asylum seekers under the ECHR
  • Expulsion
  • Detention
  • Treaties

2. The European Union

The EU comprises 28 Member States. It was established through three treaties signed by six European states in the 1950s, the most important in its early years being the EEC Treaty of 1957. The initial instruments were elaborated and updated by successive treaties over the following decade, with the Treaty on the Europen Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) defining the EU primary legal framework today. The EEC Treaty’s original objectives were to achieve economic integration in the region. Three main transformations have subsequently taken place, which have significantly impacted upon the asylum field. These have resulted, firstly, from the continued enlargement of the group of states participating to 28 at present; secondly, through the consolidation of EU law in this area, which now takes priority over the national law of the Member States; and thirdly, the widening of the Union’s responsibilities with the addition of justice and home affairs, including asylum and migration, as a Union or Community competence, in 1999. From that date the EU has been a central actor in determining the law of international protection in the Member States. The EU’s structure incorporates several key institutions including the European Parliament, the European Council and the Court of Justice of the European Union (CJEU), as well as independent agencies whose work is relevant to asylum, including the European Asylum Support Office (EASO), the Fundamental Rights Agency (FRA) and the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex).

In addition, EU asylum law and practice has great potential to influence significantly the development of the international protection system more broadly. This is in part because many countries look to the EU as a leading standard-setter in legal and normative terms. In addition, however, given that State practice is a source of international law, harmonized practice (if and when it is achieved) in all EU Member States will be extremely important in contributing to the evolution of international refugee law worldwide.

Main Debates

  • What are the objectives of EU involvement in asylum law?
  • Does it aim at human rights protection, application of asylum in the context of the EU internal market, or establishment of fortress Europe?
  • Is the EU involvement in asylum law raising or lowering standards in practice?
  • What is the relationship of the 1951 Geneva Convention with EU asylum law?
  • What is the relationship between the 1951 Geneva Convention and Member States’ national law enacted pursuant to the European Community instruments?
  • What have been the main results of the legislative process and other forms of common policy-making since 1999?
  • To what extent is the CEAS truly ’common’?
  • What potential has the jurisprudence of the Court of Justice of the European Union in asylum cases to influence the development of refugee protection standards, not only in the EU, but also at global level?

Main Points

  • Historical development of EU law on asylum
  • Evolving EU competences over asylum matters
  • Human rights and the EU
  • Institutional actors and their powers and roles
  • Evolving roles of the different EU institutions in EU asylum law- and policy-making
  • Harmonization of the 1951 Geneva Convention Refugee Definition
  •  Subsidiary Protection
  •  Temporary Protection

Main Debates

  • Assistance to those displaced outside the EU v. duty to provide protection within European state territory
  • Non-entrée policies v. duty to provide protection

Main Point

  • Tension between objectives of migration control, particularly control of irregular migration, and protection obligations

EU Documents

  1. Regulation No 610/2013/EC of the European Parliament and of the Council of 26 June 2013 amending Regulation (EC) No 562/2006 of the European Parliament and of the Council establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), the Convention implementing the Schengen Agreement, Council Regulations (EC) No 1683/95 and (EC) No 539/2001 and Regulations (EC) No 767/2008 and (EC) No 810/2009 of the European Parliament and of the Council.
  2. B Regulation No. 562/2006/EC of the European Parliament and of the Council of 15 March 2006 Establishing a Community Code on the Rules Governing the Movement of Persons Across Borders (Schengen Borders Code), OJ L 105, 13 April 2006.

Main Debates

Has the first phase of harmonisation of EC asylum law brought about consistency of decision-making and harmonisation in practice? If not, what further steps are required to achieve these aims?
What do the extensive exceptions and qualifications to protection criteria and procedural safeguards in EU instruments mean for access to a fair and effective refugee status determination process?

1. Detention
Main Debate

Is detention of asylum seekers consistent with EU Member States’ international refugee and human rights obligations?

Main Points

The use of detention as a deterrent or punishment, in addition to containment
Different legal standards governing

detention of asylum-seekers
detention of people with no right to remain, pending removal and
criminal detention, including for irregular entry.

2. Return policies
Main Debate

Is there adequate protection for rejected asylum-seekers in order to ensure that return policies do not infringe the non-refoulement principle?
Main Point

Use of protection mechanisms to delay expulsion or removal.

3. Readmission agreements
Main Debate

Are the ‘safeguard’ provisions in readmission agreements sufficient?
Main Points

Objectives of readmission agreements:

EU seeking to use readmission agreements to guarantee removal of irregular migrants, including those who have merely transited through other contracting party
Rules on proof and presumptive evidence for nationality and transit route
Safe guard clauses