13 Doede Ackers, ‘Negotiation on Asylum Procedures Directive’ (2005) 7 European Journal of Migration and Law 1.
14 Ariadna Ripoli Servent and Florian Trauner, ‘Do Supranational EU Institutions make a difference? EU asylum law before and after “communitarization”’ (2014) 21 Journal of European Public Policy 1142.
15 See ibid. See also Simon Hix and Abdul Noury, ‘Politics, Not Economic Interests: Determinants of Migrant Policies in the European Union’ (2007) 41 International Migration Review 182 16 See ibid.
17 Kaunert and Leonard (n 10).
18 Boštjan Zalar, 'Comments on the Court of Justice of the EU’s Developing Case Law on Asylum’ (2013) 25 International Journal of Refugee Law 377
19 Eleanor Drywood, ‘’Who’s in and who’s out?” The Court’s Emerging Case Law on the Definition of a Refugee.’ (2014) 51 CML Re 1093.
The primary sources for all European Union legislation are the various EU treaties. They function most similarly to a constitution in a national legal system, establishing the competences of the European Union, the areas of law in which the EU has jurisdiction and which organs of the EU will be involved in the legislation process. Most significantly, these treaties have been ratified by the member states, allowing the states to consider and approve sharing their jurisdiction and competence in these areas with the European Union.
The treaties set the tone for the nuances of the EU’s views on a particular area of law. The EU’s competence on asylum is no exception. Two articles in particular within the Treaty of the Functioning of the European Union deal with the regulation of asylum by the EU. Article 67 states that the EU
shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals.20
Article 78 expands into more detail on the role of this common asylum system, noting that the goal of the EU is to offer asylum, subsidiary protection and temporary protection in accordance with the principle of non-refoulement and specifically mentions that protection must be in line with the Refugee Convention.21 It is important to note that Article 78 specifically encodes the Refugee Convention22 as a source of EU law. All of the member states of the EU are signatories to the Refugee Convention; yet by
incorporating the convention into European Union law, it is clear that the EU is not discarding the tenets of the internal law on refugees. but using it as a base for the EU common asylum. The Treaty also sets out that the goal of the asylum system is harmonisation and commonality, while working within principles of international law
20 Consolidated version of the Treaty on the Functioning of the European Union [2008] OJ C 115/47 at Article 67(2)
21 Consolidated version of the Treaty on the Functioning of the European Union [2008] OJ C 115/47 at Article 78.
22 Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention).
and fundamental rights. Within the current wording of the Treaty, it is clear the various tensions which exist in attempting to balance the priorities within EU asylum legislation.
The EU has historically had strong links with international refugee law. Ten of the original twenty six signatories of the original Refugee Convention are current members of the EU. The dissolution of internal borders, a key aspect of the Schengen Agreement, meant that the EU had an interest in regulating external borders and
migration into the EU. Throughout the history of the European Union, there has been a desire to limit internal borders and coordinate treatment of third party nationals, including refugees and asylum seekers.23 The concept of justice and home affairs coordination was introduced by the Treaty of Maastricht. The Treaty of Maastricht turned the then-
European Community into one of three pillars of the European Union: with the other two pillars being built upon previous informal cooperations: the Common Foreign Security Policy and most relevantly, the Cooperation in Justice and Home Affairs.24 The Justice and Home Affairs Pillar was intended to handle issues such as police cooperation, united investigation of international crime and asylum and migration.25 It is interesting that asylum and migration were twinned with measures intended to combat crime, an insight into how the EU views third country asylum seekers.
The Treaty of Amsterdam rearranged these pillars, with asylum and migration moving to the European Community pillar, as part of Title IV of the European
Community.26 The move to the European Community pillar meant that the European Court of Justice would be able to rule on asylum issues and the European Parliament would be consulted, both changes which were considered helpful to increase the humanitarian protection for asylum seekers.27 This was not deemed to be totally successful28 and harmonisation of rights standards were further undermined by the decision of the UK and Ireland to opt out of Title IV (although both countries could and did choose to opt into specific legislative measures without permission of the other
23 Jef Huysmans, The Politics of Insecurity: Fear, Migration and Asylum in the EU. (Routledge 2006). 24 Jörg Monar, ‘The EU as an International Actor in the Domain of Justice and Home Affairs’ (2004) 9
European Foreign Affairs Review 395 25 See ibid 395.
26 See ibid 397. 27 See ibid 396
28 Steve Peers, ‘”Mission Accomplished?” EU Justice and Home Affairs Law after the Treaty of Lisbon’ (2011) 48 Common Market Law Review 661.
member states.)29 Finally, in the Treaty of Lisbon, the three pillar system was abolished, with all areas of EU competence being judged to fall under the jurisdiction of the Court of Justice of the EU and with additional input involved from the European Parliament, often judged to be the European Union organ particularly concerned with human rights.30 The Lisbon Treaty was considered by academics to be an opportunity to better harmonise the standard of treatments for asylum seekers.31
It is important to consider the meaning of the current Treaty articles in contrast to the former Article 63 Treaty of the EU established by the Treaty of Amsterdam.32 In ex- Article 63, reference is made frequently to minimum standards – minimum standards to qualify as a refugee, minimum standards for the protection offered to refugees and
general minimum standards of immigration policy.33 Kaunert and Leonard argue that this represented a shift in focus after the Lisbon Treaty. Before the Lisbon Treaty, asylum was almost completely controlled by the European Council of Ministers, negotiated between governments, with minimal involvement by the European Parliament or the European Commission.34 While the Lisbon Treaty (and the Amsterdam Treaty) are not considered primary sources of EU law, they have amended the two original treaties: the Treaty of the European Union and any subsequent treaties could amend the relevant articles and their regulation of the asylum process.
The argument was made that the European Council of Ministers was initially “venue-shopping”, attempting to handle asylum standards at a European level, therefore avoiding interference from national legislatures and courts which were sympathetic to the human rights of asylum seekers, instead handling it with like-minded governments on a European level.35 This thesis would seem to be further supported by the initial lack of input from the European Parliament and the European Commission, as well as the
29 Maria Fletcher, ‘Schengen, the European Court of Justice and flexibility under the Lisbon Treaty: balancing the United Kingdom's “ins” and “outs”’ (2009) 5 European Constitutional Law Review 71, 80
30 Peers (n 28.) 31 See ibid 664.
32 Consolidated Version of the Treaty on European Union [2008] OJ C115/13 at Article 63. 33 See ibid.
34 Christian Kaunert and Sarah Leonard, ‘The European Union Asylum Policy after the Treaty of Lisbon and the Stockholm Programme: Towards Supernational Governance in a Common Area of Protection?’ (2012) 31 Refugee Survey Quarterly 1, 8
minimal jurisdiction held by the Courts of Justice in Europe before the Lisbon Treaty.36 At this time, the wording of the Treaty also mentioned minimum standards, which led to fears by academics that, by establishing minimum criteria, there would be a “race to the bottom” between member states aimed at eliminating pull factors, each state believing that by minimising protections they would lessen their share of the “burden” of asylum seekers.37 At the least, it seemed that the European Council of Ministers wanted to ensure that member states did not have to completely overhaul their asylum systems to take account of additional fundamental rights.38
Regardless of whether this was true before the Treaty of Lisbon, the EU has responded to several of these criticisms in the evolved Common European Asylum System. The Treaty language changed to reflect that the next stage of the CEAS meant that instead of striving for minimum standards, the European Union now seeks to find common standards39 – language which makes it more difficult to avoid responsibility for insufficient human rights protection or violations under the Refugee Convention.40
Legislation regarding asylum now uses the co-decision procedure, which provides a greater role for the European Parliament and more oversight by the European courts.41 It is important, however, to note that along with changes to the framework of the EU treaties, there have also been changes to the membership of the European Parliament. Ripoli Servent and Trauner dispute the popular idea that all members of the European Parliament are necessarily sympathetic to the fundamental rights of asylum seekers.42 In a climate where British nationalist group UKIP won over 20 seats in the last European Parliament, a trend echoed by other nationalist parties around Europe, there will obviously be repercussions in the views of the European Parliament.43 It is also worth considering the research by Hix and Noury, which examines trends in the voting records of Members of the European Parliament (MEPs) on the topic of migration.44 Hix and
36 See ibid 1398. 37 See ibid 1402.
38 Ripoli Servent and Trauner (n 14) 1147. 39 Kaunert and Leonard (n 34) 15.
40 Costello (n 6) 54. 41 See ibid 1405-1406.
42 Ripoli Servent and Trauner (n 14).
43 This trend culminated in the British popular vote to leave the EU. Its effects not only on Britain, but the EU, are unknown. See discussion in chapter 7.
Noury found that female MEPs or MEPs from an ethnic minority background were more likely to be sympathetic to migrants and their fundamental rights,45 as were MEPs from countries with historical links to colonialism and high numbers of asylum seekers.46 While the European Parliament has traditionally been more diverse than other branches of the European Union,47 its membership will obviously change both at every
enlargement of the EU, as well as after every election. The European Parliament will not necessarily always be an advocate for the human rights of asylum seekers.
The complexities of whether the EU has been an ally to asylum seekers and refugees will be discussed throughout this chapter. Yet what is clear is that post-Lisbon Treaty, the EU has taken account of criticisms that they had swung too far towards emphasising a reduction in numbers of asylum rather than focusing on protecting the rights of asylum seekers. Although these changes in viewpoint and relationship between the organs of the European Union are not necessarily enough in themselves to redress the pendulum swinging between border protection and fundamental rights, it is important that the EU is attempting to redress this balance by enshrining a more balanced approach through the legislative process and the wording of the Treaty on the Functioning of the European Union.