Background
At a summit in Amsterdam in 1997, the European Council agreed to work towards an area of ‘freedom, security and justice’. The need for greater cooperation on justice and home affairs issues, including migration, asylum and security, arose from the gradual dismantling of borders between EU countries. This was part of the process of EU integration beyond a common market.
At the European Council summit in Tampere in 1999, states set themselves the goal of establishing a common EU policy on immigration and asylum. Member states began by setting out to establish minimum standards to which all countries must conform in order to reduce the disparity between the different countries’ policies.
EU legislative framework
EU legislation is made up of directives and regulations, which must be implemented by member states. Directives stipulate the result that must be achieved, but countries can choose how to incorporate directives into national law. Countries do not have to change their policies and practices unless they conflict with a directive. Regulations are different in that they apply directly and are legally binding on all member states as soon as they come into force.
EU asylum legislation covers reception conditions, allocation of responsibility for processing asylum claims (between member states), the definition of a refugee and person in need of international protection, asylum procedures, and temporary protection. The deadline for agreeing policy on these key areas was 1 May 2004.
With the first stage of harmonisation complete, countries have started work on the second stage, as agreed at the Hague Summit in November 2004. The Hague Programme sets 2010 as the deadline for agreeing a common asylum system for the whole of Europe, including common asylum procedures and a uniform status for all people granted asylum within the EU.
Reception conditions
Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers:
The Reception Directive came into force in February 2005. It lays down minimum standards for the reception of asylum seekers in all participating EU countries (including the UK) while their claim is being decided. Areas covered include access to work, housing, education, healthcare, freedom of movement and the reception of unaccompanied children seeking asylum. This directive aims to ensure similar treatment of asylum seekers regardless of the country of asylum, thereby removing any incentives for applicants to move from one country to another.
While many of the provisions in the Reception Directive were already met by UK domestic law, it did force the Government to make changes to reception conditions in some areas. In particular, it required the Government to allow asylum seekers to apply for permission to work after waiting for an initial decision for 12 months. It also requires member states to provide information in a language the applicant can reasonably be expected to understand, and to keep an offer of accommodation open to applicants who fail to travel. It also provides a right of appeal against someone refused access to support.
Allocating responsibility for examining asylum claims
Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (Dublin II):
The Dublin II Regulation came into force in September 2003. It aims to establish which member state is responsible for deciding an asylum claim. It provides a hierarchy of criteria to be applied to each asylum claim, starting with certain types of family links.
If these particular family links are absent, and the applicant does not hold a valid resident document or visa, the country where the applicant entered the EU legally, or was prevented from entering unlawfully, will be deemed responsible. This places an unfair burden on countries located on the EU’s borders, since these are the countries through which a significant proportion of asylum seekers enter the EU without authorisation. Member states recognised this additional burden and made a declaration committing to assist these countries in protecting their borders. This places emphasis on border controls rather than providing protection to those in need.
The Definition or Qualification Directive
Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted
The Definition Directive provides a uniform refugee definition and defines who qualifies for subsidiary protection in the EU. It also defines the minimum rights that people with status are entitled to. There have long been significant differences as to how European countries interpret the refugee definition and who should otherwise be entitled to protection. This has meant that asylum seekers refused in one EU country may well have been granted asylum in another country if they had applied there.
The Definition Directive explicitly recognises gender based persecution and persecution by non-state agents. However, entitlements for people with subsidiary protection status (such as humanitarian protection) may be severely restricted by the Definition Directive as countries will be able to limit access to work and benefits. States agreed to the Definition Directive in 2004 and had to comply with it by October 2006.
The Procedures Directive
Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status:
The Procedures Directive sets out minimum standards for the procedures EU countries use to consider asylum claims. It covers a range of fundamental issues such as the use of detention, the definition of ‘safe third country’ and ‘safe country of origin’, and the right of access to the asylum system, to a personal interview, to legal assistance and to an incountry appeal.
During negotiations, the UK sought to push standards down in some areas in order to ensure that the Procedures Directive reflected UK practice, as well as provisions in the Asylum and Immigration (Treatment of claimants, etc.) Act 2004. The Procedures Directive includes scope for denying access to asylum procedures for applicants who have travelled through a ‘super safe third country’, putting obligations on states to regard applications from nationals of ‘safe’ countries as manifestly unfounded and providing numerous grounds for using accelerated procedures.
UNHCR and NGOs have argued that the Procedures Directive fails to adequately protect
basic rights, including the right to a personal interview, legal advice, an interpreter and incountry appeal. The Directive became binding on all States from 1 December
2007.
Temporary Protection Directive
Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving and supporting such persons:
The Temporary Protection Directive was adopted by the European Council in July 2001. The deadline for compliance was the end of 2002. However, the UK missed the deadline and only made the necessary changes to comply with the Directive in January 2005. The Temporary Protection Directive provides for a coordinated EU response to large influxes of displaced people into Europe as a result of armed conflict or endemic violence.
It requires that member states provide people who are defined by the Directive with temporary leave to remain for no longer than one year. When this period of leave expires, s/he will be entitled to apply for an extension of limited leave up to six months at a time and for up to one year. If the reasons for temporary protection persist after this, the European Council may decide to extend the regime for another year.
Leave to remain should be accompanied by entitlements in line with other categories of people with limited leave to remain, which should include access to housing, benefits, education and the labour market. To date, the Temporary Protection Directive has never been used.
