Wednesday, 6 August 2008

Commission creates asylum pact with blessing from the French

News @ European Commission. The European Commission has adopted a communication entitled “Policy Plan on asylum, an integrated approach to protection across the EU.” It should be recalled that the 1999 Tampere European Council decided that a common asylum policy should be implemented and a common European asylum system be set up using a two-phases approach. The aim of the first phase of a Common European Asylum System (CEAS) which ran from 1999 to 2005 was to harmonise Member States’ legal frameworks on the basis of common minimum standards. The elements of the first phase are already in place: the Reception Conditions Directive (minimum standards for the reception of asylum seekers), a Directive on minimum standards in asylum procedures for granting and withdrawing refugee status, a Directive on qualification and content of refugee status and on subsidiary forms of protection and a Regulation on criteria and mechanisms for determining the State responsible for examining asylum requests. The crucial objective of the Common European Asylum System is the establishment of a common asylum procedure and a uniform status for persons in need of international protection valid throughout the EU.

In the present communication, the Commission is proposing a policy plan which defines a road map towards the creation of the CEAS. The Commission has stressed that a Common European Asylum System must provide for a single common procedure, establish uniform statuses for asylum and for subsidiary protection, increase cooperation among the Member States, provide for rules on the determination of the Member State responsible for examining an asylum application as well as solidarity mechanisms. The Commission has pointed out that several shortcomings were identified in the legislative instruments of the CEAS’s first phase – therefore according to the Commission the existing common standards are not enough and consequently it will propose amendments to the current legislation as well as new instruments to complete the second phase of the CEAS. According to the Commission the Reception Conditions Directive allows a considerable amount of discretion for Member States in several key areas. Therefore the Commission wants to amend this instrument to achieve further harmonization. The Commission has stressed that there are different asylum procedural arrangements among the Member States and that the Hague Programme as well as the TFEU call for the establishment of a common asylum procedure. The Lisbon Treaty removes the reference to minimum standards hence there will be common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status.

The Commission is therefore planning to propose in 2009 amendments to the Asylum Procedures Directive which will include the establishment of a single, common asylum procedure and in this way Member States would no longer be entitled to have their own procedural arrangements. The Commission has also pointed out that the Qualification Directive has provided for minimum harmonization on the criteria for granting international protection yet it has stressed there are still differences among the Member States on the recognition of protection needs of applicants from the same countries of origin.

The Commission wants to promote solidarity in this field: it has pointed out that “Solidarity and fair sharing of responsibility” is a TFEU principle which governs the implementation of the CEAS. The Lisbon Treaty introduced a new requirement for “solidarity between Member States.” Hence, those Member States exposed to an influx of asylum seekers and illegal immigrants will be able to be assisted by the Union. The Commission has stressed that one of the CEAS’s aims is to assist Member States that due to their geographic position have to face pressures on their national asylum systems. According to the Commission, the EU has the responsibility, based on the principle of the solidarity, to find a common response to tackle the challenges faced by those Member States. The Dublin Regulation provides the criteria to establish which Member State is responsible for examining an asylum claim. Presently, asylum seekers must apply for asylum in the first EU Member State where they arrive.

The Commission wants to create a Community mechanism which would provide for temporary suspension of the Dublin rules. The Commission believes that the suspension of the Dublin system in emergency situations will lead to a more uniform burden sharing of asylum applications among the EU Member States. The Commission will propose for cases of exceptional asylum pressure, the internal re-allocation, on a voluntary basis, of beneficiaries of international protection from one Member State to another. It should be mentioned that a provision introduced by the Lisbon Treaty states “In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned.”

As there is no veto power and measures are adopted through the co-decision procedure, the UK has a reduced influence over the development of a common asylum policy.

Jacques Barrot, Commissioner Responsible of Justice, Freedom and Security, is not concerned with the Lisbon Treaty entering into force. According to Europolitics, he said “Lisbon did include an article on asylum, but we can act even in the framework of the present treaties.” However, the Commission has made clear, in its communication that it will propose measures to achieve the objectives set out in the TFEU. In fact, the Commission is already counting on the new legal basis provided by the TFEU.

It is no coincidence that the European Council conclusions adopted on 20 June in the area of Freedom, Security and Justice match the French priorities in this area, so French presidency success is almost guaranteed. The European Council has welcomed the abovementioned Commission communications and has underlined the need to continue with progress on the future Common European Asylum System with a view to its realisation by 2010. The European Council has endorsed the European Commission border management package and has invited the Commission to put forward proposals by the beginning of 2010 for an entry/exit and registered traveller system and legislative proposals on an electronic system for travel authorisation and on the creation of a European Border Surveillance System.

The European Council has also stated that it “[...] looks forward to the forthcoming proposal of a pact on immigration and asylum by the incoming French Presidency.” It is well known that France is drafting a European Pact on asylum and immigration. It should be pointed out that the European Commission proposals also match with the French priorities and its idea for the ‘European pact on migration and asylum.” France, at the informal meeting of justice and home affairs ministers on 7 July has revealed its ambitious six-month programme in the area of freedom, security and justice, including its European Pact on Immigration and Asylum. The main aim of the pact is to ensure better co-operation amid Member States on asylum and immigration policy meaning more harmonization on immigration and asylum matters. France has drafted the pact around five main pillars. Under the Pact, Member States should make five commitments. France has suggested that EU should organise legal immigration taking into account the capacity of each Member State to accept migrants according to their labour market needs and in the spirit of solidarity. The Blue card proposal will be the main focus under this heading. Member States would be also committed to set up effective integration policies. The second pillar concerns the control of illegal immigration mainly by returning illegal immigrants to their country of origin. The return of illegal immigrants is already covered by the recently adopted Return Directive. Nevertheless, the pact calls for the EU to conclude readmission agreements with third countries and to put in place common mechanisms for the return of illegally staying third country nationals such as joint flights. Member States would be urged not to use “general regularization for humanitarian or economic reasons, within national legislation.” The third pillar is focused on making the control of the EU external borders more effective in the spirit of solidarity. This includes measures such as strengthening Frontex powers and issuing biometric visas from 2012.

The pact reiterates the need to establish a common European asylum system. It also calls for the creation of a single EU asylum procedure. The pact’s fifth pillar intends to promote the development of the countries of immigration. Member States would be required to implement the decisions resulting from the pact. France has faced opposition from some Member States mainly from Spain which has not agreed to certain aspects; hence, French Immigration Minister Brice Hortefeux has watered down his original proposal. The original plan of a compulsory “integration contract” for immigrants was abandoned. Moreover, Sarkozy was hoping to end the mass “regularizations” of illegal migrants yet, due to Spanish opposition, the strong wording calling for the ban of mass regularizations was softened. According to Brice Hortefeux, “The interior ministers gave their unanimous accord on the principles, the objectives, the presentation and the structure of the pact.” Sarkozy is expecting the immigration and asylum pact to be endorsed and officially adopted at the EU summit in October.

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