The Common European Asylum - Essay Example

Introduction to asylum Asylum as defined in encyclopedia "is the protection granted by a to a foreign citizen against his own . This protection is based on certain refugee rights which are acknowledged internationally. It is granted to a person who cannot seek protection in his/her country of origin for fear of being persecuted for various reasons like race, religion, nationality, etc. Persons seeking international protection in the European Union (EU) have increased tremendously since the 1990s. As a result the member states need to find a common solution to this situation. This process of integrating the refugees in the European Union forms a part of the larger process of European integration which began with the Treaty of Maastricht (1992). The European Union as established in the Treaty of Maastricht is an area which ensures freedom of movement. The treaty of Amsterdam (1997)further reformed the Maastricht treaty and all dealings related to free movement of persons; controls on external borders; asylum, immigration and judicial cooperation in civil matters were brought under the legal framework. The Schengen (Agreement 1985) signed by three countries Benelux, France and Germany was also included in this treaty which eliminated all border controls and guaranteed the free movement of citizens from participating countries. Tampere council At the European Council summit in Tampere in 1999, the member states aimed for the establishment of a common EU policy on issues of immigration and asylum. Among one of its elements that it sought to achieve was the development of a common European asylum system. Point 14 of the Tampere European Council states the requirements of such a common system. This System should include, in the short term, a clear and workable determination of the State responsible for the examination of an asylum application, common standards for a fair and efficient asylum procedure, common minimum conditions of reception of asylum seekers, and the approximation of rules on the recognition and content of the refugee status. It should also be completed with measures on subsidiary forms of protection offering an appropriate status to any person in need of such protection. (tampere european council 15 and 16 october 1999 presidency conclusions) Directives This was also the first stage of establishing the common European asylum system wherein four directives were laid down in order to harmonize various aspects of asylum policies. The deadline for adoption of the first legally binding instruments was set for five years after entry into force of the Treaty of Amsterdam, a period which expired at the end of April 2004. 1. reception directive; regarding reception of asylum seekers 2. Dublin II regulation; regarding the country responsible for examination of asylum claim 3. qualification directive; regarding the definition and content of refugee and subsidiary protection status 4. Procedures directive; regarding procedures used to consider asylum claims. The first directive laid down in the tampere council was the reception directive. It came into force on 1st September 2003. It states the minimum standards on the reception of asylum seekers. Its objective was to provide the asylum seekers with a dignified standard of living. The reception directive defines the material conditions for the refugees once they land on the EU territory. Their accommodation, food, clothing and financial assistance is all given due care. Family reunion is also given consideration along with medical and psychological care. Finally the integration of the minor children into the education system is also prioritized. The doors of the labor market are also opened to the asylum seekers. All these material reception conditions are provided to ensure a decent standard of living for the applicants as well as their families. At the same time extra care is also to be granted to the most vulnerable applicants who have faced some forms of violence or who are disabled or minor children and pregnant women. At the same time rehabilitation programmes are considered for the victims of torture. Further it is also stated that the member states take the responsibility of promoting harmonious relationships between the applicants and the local communities with a view to safeguard the applicants from acts of racism, sex discrimination and xenophobia. These provisions are aimed to limit the secondary movement of asylum seekers who leave one EU country to claim asylum in another where reception conditions are better. At the same time the directive also states the reduction of reception conditions to the applicants on certain grounds. Some of the causes are disappearance without reasonable cause, withdrawal of application or certain cases wherein the applicant poses a threat to national security. How a refugee status is granted The qualification directive defines who is a refugee and his rights and who qualifies for subsidiary protection status. The directive states that any citizen of the third country who is outside his country of origin due to a fear of persecution on grounds of race, religion, nationality, political opinion or membership of a particular social group can apply for refugee status. (Conditions governing eligibility for refugee status or international protection) It also defines situations which constitute persecution which makes the applicants eligible for refugee status. serious and unjustified harm (by virtue of its nature or repetition) on the grounds of race, religion, nationality or political opinion; physical or mental violence, including acts of sexual violence; legal, administrative, police or judicial measures implemented in a discriminatory manner; prosecution or punishment applied in a disproportionate or discriminatory manner. (Conditions governing eligibility for refugee status or international protection) The procedures directive further details the procedure whereby a person is granted refugee status. The guarantees of the directive state that the procedure of the application and their rights should be informed to the applicants by the member states. Further a personal interview can be requested by the applicant with a competent official where the applicant provides all the relevant information including the reasons for fear of persecution. At the same time legal assistance is provided to the applicants throughout the procedure. Finally the member states must ensure that the authorities processing the applications for asylum are competent enough and have a sound knowledge and training of asylum issues. Finally the general provisions state that the directive applies without discrimination as to sex, racial or ethnic origin, religion or belief, disability, age, sexual orientation or country of origin. (Minimum standards for procedures for granting and withdrawing refugee status) The Dublin regulation The Dublin II regulation entered into force on September 1st 2003. It replaced the Dublin convention of 15 June 1990 as the mechanism for deciding which EU country maintains responsibility for processing an asylum claim. The central principle of this regulation is that the country that allows the asylum seeker into the EU legally or illegally is held responsible for their asylum claim. For this purpose the Eurodac system is considered useful which was established with a view of facilitating the application of the Dublin convention. The directive also states the measures for protecting personal data. It underlines the legal aspect and proper application of the system to ensure the security of the central unit. It also lays down the compensation benefit to those who suffer damage due to the unlawful application of the system. Finally it lays down the allocation of responsibilities of the system to the competent authorities. The Eurodac system The Eurodac system enables Member States to identify asylum applicants and persons who have been detained while illegally crossing the borders of the Community. By comparing fingerprints, Member States can determine whether an asylum applicant or a foreign national found illegally present within a Member State has previously claimed asylum in another Member State or whether an asylum applicant entered the Union territory unlawfully. Eurodac consists of a Central Unit within the Commission containing a computerized central database for comparing the fingerprints of asylum applicants and a system for electronic data transmission between Member States and the database. The data sent by Member States also include in particular the Member State of origin, the place and date of the asylum application if applicable, sex and reference number. Data are collected for anyone over 14 years of age and are entered directly into the database by the Central Unit. ("Eurodac" system) The data of asylum applicants are maintained for ten years and erased when they obtain the citizenship of any of the member states. In case of foreign nationals who were detained from illegaly crossing the borders, the data are maintained for two years and only erased if the foreign national has obtained a residence permit or has left the area of member states. The costs of maintaining the Eurodac system are borne by each Member State. The qualification directive provides a common definition of a refugee and one in need of international protection. It also defines the rights that they are entitled to respectively. Along with the conditions laid for granting refugee status, the qualifications directive also provides the terms for the applicants for being granted subsidiary protection status. All the applicants who are outside the country of their origin and cannot return for fear of being persecuted qualify for this status. The directive also states that a thorough examination of the applicants' reasons for being persecuted should be taken into consideration. This includes the assessment of the laws of the country of origin, the possibility of his persecution, his personal history, and his activities after leaving his country of origin. Further the directive also defines the rights that the person with the refugee or subsidiary protection status is entitled to. These are the right to non-refoulement, right to information, rights related to residence permit, rights related to travel, to take up employment, access to educational system and medical care and appropriate accommodation. The procedures directive establishes minimum standards for the procedures to determine asylum claims. Other than laying down the procedure for granting refugee status, this directive also states the conditions of withdrawal of refugee status. It lays down the use of detention and accelerated procedures for those whose asylum claims are unfounded. It also lays down guarantees for unaccompanied minors and states the appeal procedures for the applicants. Along with defining the procedures for granting refugee status, the directive also defines two types of procedures. They are regular and accelerated. The cases to which the accelerated procedure applies are stated. They are cases where applications for asylum are regarded inadmissible and unfounded applications. Further the conditions are also defined wherein an application is considered unfounded or is declared inadmissible. Further the appeal procedures are also defined in the directive which enables the applicants to appeal against any decision taken by the member states. Finally it provides definitions of safe third country and safe country of origin concepts. Thus it is seen that the adopted legislation reflects the advantageous position of the refugee condition, such as recognition of persecution by non-state actors. The granting of subsidiary protection status to individuals who do not fall within the definition of refugees is another accomplishment of the first stage of ceas. Furthermore, the legislation obliges member states to provide a minimum standard of support to asylum seekers during the determination procedure, including healthcare, accommodation and other benefits. However, member states also face the difficulty of agreeing upon the procedures to determine just who should qualify for international protection and what rights they should enjoy. In order to accommodate conflicting situations along with maintaining the existing asylum systems, the member states lower the standards of asylum procedures. In this context, the European Union's draft Asylum Procedures Directive has been severely criticised by the European Parliament, NGOs and UNHCR for falling short of international standards in refugee and human rights law and best practice. (The State of the World's Refugees 2006 - Chapter 2 Safeguarding asylum: Box 2.1 Towards a common European asylum system) Thus the ability to set a framework which could lead to a common European asylum system is questionable. The Hague programme The second stage of the common European asylum system came into existence with the Hague programme which was adopted by Heads of State or Government on 5 November 2004. It is based on a complete evaluation of the directives adopted in the first phase. It takes forward the aim of establishing the Common European Asylum System and the common asylum procedure and uniform status for those granted asylum or subsidiary protection. The commission has aimed to adopt the instruments of the second phase by 2010. The Hague programme underlines the importance of practical cooperation between member states to achieve the goals of Common European Asylum System. Related to this idea is the exchange of information on migration and asylum issues. The Hague programme identifies the improvement of such exchanges. The external dimension of asylum and migration is also taken into consideration by the Hague programme. The global protection needs are taken into account. The asylum seekers will be benefited only when they obtain protection as quickly as possible. Regional Protectipon Programmes and European Refugee Fund In order to resolve refugee situations, coordination of EU policies in partnership with third countries is essential. In this context the development of the regional protection programmes is taken into consideration which proposes to enhance protection capacity in countries in regions of origin and a resettlement programme. Another important factor in Regional Protectipon Programmes (RPP) is the joint resettlement programme demonstrating the partnership element of RPPs to the third countries involved. In addition to the legislative work, solidarity has been enhanced through the creation of the European Refugee Fund (ERF). The ERF fosters solidarity between Member States. It also boosts their efforts in the reception of asylum seekers, refugees and displaced persons. It also promotes the social and economic integration of refugees and their return to their countries of origin, if they so wish. The general objective of the European Refugee Fund (ERF) in order to support the efforts of Member States to grant reception conditions to refugees, displaced persons and beneficiaries of subsidiary protection, is to apply fair and effective asylum procedures. It further aims to promote good practices in the field of asylum so as to protect the rights of persons requiring international protection. Finally it seeks to ensure that the Member States asylum systems work efficiently. In supporting the objectives and priorities of the Hague Programme regarding the development of the Common European Asylum System in its second phase, ERF aims to ensure three ends. First the capacity building for the asylum systems of the Member States in general; second further the voluntary efforts of Member States in providing a solution in their territories to refugees and displaced persons eligible for resettlement; and thired the voluntary burden sharing between Member States which enables the transfer of refugees from one Member State to another. The green paper of 6th June 2007 The green paper of 6 June 2007 analyzes the effectiveness of the adoption of the directives as well as the second stage of the formation of common European asylum system and proposes options to enhance it further. It states that it is essential to embark already now on an in-depth reflection and debate on the future architecture of the CEAS. The goals in the second stage should be to achieve both a higher common standard of protection and greater equality in protection across the EU and to ensure a higher degree of solidarity between EU Member States. (green paper on the future Common European Asylum System) It aims to adopt a comprehensive approach with a view to improve all aspects of the asylum process right from the moment individuals seek access to the moment a solution for international protection is reached. In order to accomplish this objective the paper states that favorable conditions should be generated for the asylum seekers to achieve their goals and the overall quality of the asylum process should be improved. At the same time effective management of asylum flows and prevention of fraud and abuse should be taken care of in order to maintain the credibility of the asylum system. At the same time in order to stabilize the asylum practices, measures relating to the practical cooperation between the member states should be implemented. The need for increased solidarity in the area of asylum and development of an effective international protection system is also considered. The procedures directive is reviewed suggesting that instead of number of procedures, "standard procedures" should be developed. In this context the effectiveness of request for asylum and access to international protection in EU should be enhanced. The laws related to border procedures, registration and screening process would play an important part in this. At the same time a possible solution for the establishment of a common asylum procedure in developing a single procedure for assessing applications for refugee status and for subsidiary protection is proposed. Various aspects of the procedure need to be considered like its scope, the appeals procedure and the duration of asylum procedure. The reception directive is also criticized for its provisions which oppose the harmonization effect. For instance, there exist wide divergences with regard to the access of asylum seekers to the labour market: different Member States impose a variety of conditions that have to be fulfilled (e.g. obtaining a work permit), some Member States allow such access immediately. (green paper on the future Common European Asylum System) The improvement in the material reception conditions for the refugees is discussed. At the same time the directive is also criticized for the variations in the standard of reception conditions. Its applicability to detention centers is reviewed. At the same time the gratification of rights hampered by the detention measures is taken into consideration. In this context the paper calls for various options regarding the eligibility criteria for protection. One such option could consist in the fuller harmonisation of the eligibility criteria and the clarification of the concepts used to define the grounds for protection, so as to minimise the margin for divergent interpretations and applications in different Member States. (green paper on the future Common European Asylum System) The paper further reviews the qualification directive and proposes one single uniform status for refugee as well as subsidiary protection. It envisages that this would lead to a reduction in applications to appeal by the applicants who are granted subsidiary protection in favor of refugee status. The needs of the vulnerable asylum seekers are taken into consideration. It is suggested that their needs be identified in all stages of asylum process. In this regard focus should be on what constitutes adequate medical and psychological assistance and counselling for traumatised persons, victims of torture and trafficking and a proper identification and response to the needs of minors, especially unaccompanied minors; the development of appropriate interview techniques for these categories, based inter alia, on cultural, age and gender awareness and inter-cultural skills as well as on the use of specialised interviewers and interpreters, and laying down more detailed rules regarding what should be relevant to the assessment of claims based on gender- and child-specific persecution. (green paper on the future Common European Asylum System) At the same time the professionals in the fields of art and science should be utilized for addressing the special needs of the most vulnerable asylum seekers. The training programmes for such professionals is also given due consideratiuon. Thought has also been given to the integration of beneficiaries of subsidiary protection and on developing integration programmes. The refugees' entitlement to work is suggested as an important factor in this regard. Further the Dublin regulation and its scope are reviewed. The effectiveness of the regulation in reducing secondary movements is questioned. The evaluation report published on 6th June is also evaluated. It is stated that the Dublin system creates additional burdens on member states. The reasons provided for this are that certain member states have limited absorption capacities and come under migratory pressures. It is suggested that a system which deals with the responsibility of examining asylum claims is still needed. At the same time the needs to complement the Dublin system with additional mechanisms is also considered. Burden sharing mechanisms which are similar in scope and function to the Dublin system are also considered. For instance providing for the distribution of beneficiaries of international protection between Member States after they have been granted protection status. (green paper on the future Common European Asylum System) Effectiveness of the European refugee fund is also discussed. Ways to increase its effectiveness are proposed. The setting up of information sharing devices is discussed. The possibility of certain financing needs not met by the existing funds is also considered. Such needs might arise for instance regarding the funding of an integrated response to situations of vulnerability throughout the asylum process or of the accompanying measures related to cooperation between Member States in the context of asylum and refugee issues ways to support third countries are considered. (green paper on the future Common European Asylum System) The regional protection programme proposed in the hague programme is reviewed. Support for managing refugee situations is considered. Similarly resettlement as an external dimension of the EU asylum policy is discussed. Resettlement of refugees in EU territory also reflects the EU's commitment to show international solidarity and share the burden of the countries in the regions of origin which accommodate the vast majority of refugees. (green paper on the future Common European Asylum System) Implementing resettlement activities in the context of RPP is also considered. Finally in the context of the external dimension of asylum, protection at external borders is dwelt upon. Implementation of measures to combat illegal migration is proposed. Providing operational and financial assistance to help Member States and the establishment of teams of asylum experts, which could be called to assist Member States are some of the options proposed. Finally the setting up of a European support office is considered a positive event in the employment of expert asylum teams. Reference list "Asylum." Encyclopedia Britannica. 2007. Encyclopdia Britannica 2006 Ultimate Reference Suite DVD viewed19 June 2007 Commission of the European Communities: green paper on the future Common European Asylum System 6 June 2007. viewed 19 June 2007 Conditions governing eligibility for refugee status or international protection. 31 January 2005. 19 June 2007 "Eurodac" system 24 November 2006. viewed 19 June 2007. Minimum standards for procedures for granting and withdrawing refugee status 10 april 2003. viewed 19 June 2007. The State of the World's Refugees 2006 - Chapter 2 Safeguarding asylum: Box 2.1 Towards a common European asylum system 2001. viewed 19 June 2007 Read More