The Right to Asylum in the European Union and the Setting of the 2015 Crisis

Texto completo


The Right to Asylum in the European Union and the Setting of the 2015 Crisis:

The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on

European Union and the Treaty on the Functioning of the European Union ….[1] Prof. Dr. Cristina J. Gortázar Rotaeche

Jean Monnet Chair on European Union Immigration and Asylum Law. Faculty of Law & University Institute of Studies on Migration.

Comillas Pontifical University. Index

First Part

1. The Charter and progressive development of the right to asylum

2. The right to receive asylum in Article 18 of the Charter: Overcoming the imperfect protection of the Geneva Convention. 3. The Common European Asylum System (CEAS)

Second Part

1. The setting of the 2015 crisis

2. Conclusion: The errors in the setting of the 2015 crisis. What is coming next?

I. The Charter and progressive development of the right of asylum

The Charter of Fundamental Rights of the European Union (hereinafter, CFREU or the Charter) lists its own sources and serves as a reminder of its limits, among which is respect for its restrictions regarding competences. Thus, the Charter sets forth that EU law is only applicable as far as the Member States have conferred competences in each area; in the same way, the Charter also mentions respect for the principle of subsidiarity. In short, the Charter does


not, in itself, extend the competences of the Union or the existing application of EU law.

However, any interpretation of the Charter must be respectful regarding the obligations of pre-existing public international law and international human rights law, to which EU law owes mandatory compliance. Thus, Article 53 of the Charter (on the general provisions in Title VII therein, which govern its

interpretation and application) explains that:

Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognized, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States’ constitutions.[2]

Article 53 of the Charter is highly important regarding the outline of asylum law in the EU. Therefore, with regard to the right to receive asylum,[3] Article 18 of the Charter guarantees this right in line with the Geneva Convention,[4] and in accordance with the treaties establishing the EU (TEU and TFEU).[5] Prima facie it could be understood that, apart from full respect to the Geneva Convention, no right to asylum other than that already guaranteed by the treaties establishing the EU and their implementing standards

is constitutionalized.

Nonetheless, the treaties establishing the EU set the progressive development of the Common European Asylum System (CEAS). Therefore, the right to receive asylum, guaranteed and directed by Article 18 of the Charter, is progressively described, detailed, and developed by the secondary law rules that are adopted or amended within the CEAS, which must be developed and applied with absolute respect for the case law that the Court of Justice of the EU (CJEU) implements in the area.[6]That is to say, secondary law on asylum shall have, as reference, the meaning that the CJEU confers to the different aspects of the right to asylum proclaimed in Article 18 of the Charter.

It must be understood that this case law could not lessen or reduce

the essence of said right to receive asylum in the EU. Once the Charter has recognized the individual right to asylum as a right, case law interpretations


could not cut this fundamental right when a human being fulfills the

requirements to be a refugee or a person under subsidiary protection. Thus, the personal scope of right to asylum in the EU (Article 18) is clear: it is not

restricted to refugees, but also applies to persons with a right to receive subsidiary protection status.

However, it is essential to know what the correct interpretation of every requirement is to be fulfilled in order to be a refugee or a person under subsidiary protection and, also, the concrete content of these statuses.

Remember that right to asylum in Article 18 is a living right that is in progressive development.[7] Indeed, it has received its maturity and its real progressive nature[8] since the Treaty of Lisbon (2009) conferred the legally binding nature to the Charter and, furthermore, it has made it possible for any court, of any instance, to submit questions for preliminary rulings regarding asylum to the CJEU. Consequently, the case law that the CJEU has begun with, notably a preliminary ruling in Elgafaji[9] (a pre-Treaty of Lisbon case), is—slowly but surely—shedding light on the disputed cases relating to the specific and correct application of the right to asylum[10] guaranteed in the CEAS and after the Treaty of Lisbon constitutionalized the right under Article 18 of the Charter. Moreover, when the CJEU shapes the right to obtain asylum in the EU, the existing case law of the European Court of Human Rights (ECHR)[11] must be considered. Although the right to asylum is not set out under the ECHR, there are relevant matters in this regard that have already been established by the ECHR. In particular those relating to international protection from cruel, inhuman or degrading treatment or punishment and non-refoulement of a foreign or stateless person to their country of origin or the country from which they have arrived when their life or integrity are at risk.

This is why an all-encompassing look at the regulation of the right to asylum in the Charter must be undoubtedly extended not only to Article 18 of the same but also, of course, to Article 19 (on protection from refoulement and collective expulsions). And, in my opinion, also to Article 4 of the Charter which

condemns, along with torture – inhuman and degrading treatment, due to the striking correlation which in many cases exists between asylum protection and protection from inhuman and degrading treatment.


II. The right to asylum in Article 18 of the Charter: Overcoming the imperfectprotection of the Geneva Convention.

It is important to analyze the expression used by Article 18 of the Charter itself when referring to “respect for the rules of the Geneva Convention”. The Geneva Convention does not have a self-executive nature and the State parties have incorporated it into their respective legislations by means of rules that set out and streamline specific obligations. Therefore, for the many years the Geneva Convention has been in force, the States (their judges and courts) established case law relating to the interpretation to give to the definition of refugee contained in the text of the Geneva Convention. Nonetheless, the State interpretations have, on occasions, been dissenting.[12] Although the Geneva Convention anticipated the appeal to the International Court of Justice to settle any disputes that could arise, the fact is that no State has appealed to said court with regards to possible breaches of the aforementioned Convention. However, the most contested matters relating to the Geneva Convention

definition of refugee are, precisely, those which have received most attention in the EU Directives that implement Article 78 of the TFEU and, consequently, are receiving harmonized interpretation from the CJEU. In this regard, it is

interesting to note, by way of example: the characteristics of the agent causing the well-founded fear of persecution; the definition and content of “social group” as one of the causes of said fear of persecution;[13] the specific nature of the causes of subsidiary protection; among many other issues. The situation regarding asylum law in force in the EU is already quite different to that which existed before the CEAS was put in place. At present, the definition of refugee according to the Geneva Convention should have one harmonized

interpretation for the EU Member States and institutions.

Moreover, if we return to the Geneva Convention, it does not seem to obligate the State to grant asylum as a comprehensive and durable protection (the convention does not mention the obligation to grant asylum), although it

undoubtedly includes the individual subjective right to non-refoulement and, consequently, sets the obligation for all State parties to provide temporary protection insofar as a durable solution is not arranged by another State or there is a possibility of repatriation in conditions of safety and dignity after the


causes that led to the displacement have disappeared.[14] It has been

repeated ad nauseam that the Geneva Convention does not even mention the word asylum in its articles; it only uses this term in its Preamble and Final Act. Therefore, it can be said that in practice, the Geneva Convention has led to the State parties recognizing an imperfect protection.[15] However, it is also true that the Geneva Convention was created to protect the helpless; thus, if a State party refuses to grant a durable solution it must, in my opinion, be strongly justified. A State party’s refusal to provide a durable solution based on discretionary reasons or ones concerning political expediency would not be consistent with the Geneva Convention.

Having said that, if we move to the area of the European Union, there is no doubt whatsoever that the protection provided for in the CFREU (Article 18 and its progressive development) is rather more rights-based than

the imperfect protection of the Geneva Convention. That is to say, Article 18 of the Charter and its progressive development (CEAS) set forth in what circumstances and with what requirements the individual subjective right to receive recognition of refugee status is acquired (and similarly, if the conditions for this recognition are not met, the subjective right to obtain

subsidiary protection status).

Thus, whereas the Geneva Convention only questionably implies that there is an obligation for States to grant asylum as comprehensive and durable

protection, in contrast, EU law (Article 18 of the Charter and its progressive development) changes this situation and recognizes the individual right to asylum (as refugee, subsidiary protection status, or even through another type of humanitarian protection).

The Qualification Directive[16] is crystal clear: not only does it define who must receive the condition of refugee and who receives subsidiary protection, rather it also, logically, creates a protection status for each figure and the obligation to guarantee both statuses for Member States. Without doubt, with these two statuses, a right to asylum has been established as an individual right not only to seek and enjoy it (DUDH, 1948) but to obtain it in one of the EU Member States (Articles 13 and 18 of the Qualification Directive, respectively). [17]


Indeed, reading both Article 18 of the Charter and Article 78 (1) and (2) of the TFEU (and its implementing directives, regulations and decisions) leads us to a right to asylum that is specified as:

-the absolute rule of non-refoulement;

-the right for all applications to be examined in one of the EU Member States with due guarantees;[18]

-the right to a harmonized pre-status for all applicants of international protection consisting of a minimum standard of reception conditions;[19]

-the right to a harmonized procedure of studying each application taking into account rights and guarantees;[20]

-the right to a harmonized status and protection insurance with a minimum rights content (which could be improved by internal state law but never lessened);[21]

A fortiori, Article 18 of the Charter must be placed in relation to Articles 41 and 47 of the same to be able to define the guaranteed right to asylum. Such that, any matter relating to the right to a procedure with protection of rights will have to meet the requirements in the profiles of both Articles. Article 41 recognizes the right of all persons to good administration.[22] And Article 47 of the Charter, the right to an effective remedy and to a fair trial.[23]

III. The Common European Asylum System

The Common European Asylum System (CEAS) is a common set of rules drawn up in the EU from 2001 onwards and is still being developed.[24] It began with the Treaty of Amsterdam’s entry into force and its use of common minimum standards on international protection in the EU (which have gradually been expanded upon), and have notably reduced the sovereignty of Member States in this area. Its main pillars interpret, develop, and complete the international obligations with universal scope, especially those relating to the status of a refugee under the Geneva Convention. As I stated above, it is important to consider that this CEAS has established obligations beyond those agreed to in international refugee law for all EU Member States. The CEAS states the minimum rights of asylum applicants and of persons with refugee or subsidiary protection status, and, thus, the corresponding obligations of the Member States.[25] It also specifies the grounds for cessation[26] or exclusion


from these statuses[27]. As I have attempted to explain above, the CEAS is directed by Article 18 of the Charter, along with Articles 19 and 4 of the same. As far as the CEAS is concerned, we have to bear in mind that the majority of applicants seeking international protection enter the EU in an irregular manner and that their right to non-refoulementwithout their application being dealt with, is an absolute priority.[28] In addition, applicants deserve their right to a fair and rights-based procedure regarding their possible grounds for

international protection. If the right to a fair and effective procedure was not respected, these persons would merely join the ranks of irregular immigrants and be returned in possible violation of their basic right to

non-refoulement (Articles 4 and 19 of the CFREU).

Consequently, the most basic right for any applicant of international protection is that which provides them with the non-refoulement rule set out in Article 33 of the Geneva Convention which bans the State parties from expelling or

rejecting any refugee applicant and returning them to a country where they have a well-founded fear of being persecuted on grounds of race, religion, nationality, belonging to a particular social group or due to their political opinions. The CEAS has extended said protection to cases of subsidiary protection, and the ECHR also requires it to be applied to all cases where return may violate Article 3 of the ECHR (or other articles of the ECHR, for example its Article 8).

As we have considered above, the content of the CEAS is mainly based on standards regarding reception of the applicants of international protection, standards on the procedures to be applied in the examination (as well as the respective guarantees and resources), and standards on the harmonization and content of two statuses of international protection (the status of refugee and that of subsidiary protection). The content of subsidiary protection is restricted when compared with that of refugee status. For instance, in the case of subsidiary protection, the residence permit shall only be valid for one year (with the right to be renewed if other circumstances continue being the same),[29]and in terms of social protection and assistance, Member States can restrict this to only basic care.[30]

Furthermore, the CEAS is based on a system of shared responsibility for examining the protection applications: the so-called Dublin System.[31] As is common knowledge, this system has excessively overloaded (to the point of


causing certain national asylum systems to collapse) the Member States with the borders through which applicants of international protection enter the EU (essentially Greece and Italy). This overload situation came much before the 2015 crisis, to the point where, in 2011, both the ECHR[32] and the CJEU[33] decided that the circumstances in Greece had turned it into

an unsafe Member State with regards to Article 3 of the ECHR and Article 4 of the CFREU, respectively.

The first generation of legal instruments of the CEAS (first phase) was adopted between 2001 and 2005. Minimum standards were approved which were then watered down further by the requirement of the times to vote unanimously on decisions in the Council, which gives each State a possible veto. Therefore, a CEAS second phase or second generation of standards was obvious and necessary and went on to be approved in June 2013. In 2016, after the 2015 crisis, the Commission has presented different proposals to reform the CEAS (therefore a third phase has begun).

We should recall that the second phase of the CEAS aimed to achieve the objectives that already appeared in the Tampere Conclusions (1999) and which were not in any way achieved in the first phase, namely: a uniform protection status for the whole EU; a common procedure to recognize or deny the protection status (with common guarantees of effective legal remedy); and finally, valid recognition of the protection status granted in one Member State in all other Member States and, thus, freedom of movement in the EU of persons enjoying the protection status.

In order to achieve the objectives set out in the second phase, the most important legislative instruments in the first phase of the CEAS would have to be amended: the Dublin II Regulation and the EURODAC Regulation;[34] the Directive on reception conditions for applicants of protection;

[35]the Qualification Directive (on protection statuses);[36] the Procedures Directive and the European Asylum Support Office (EASO) would also have to be set up and placed in operation.[37] Thus, in effect, the basic directives and regulations of the CEAS were amended (recast) in the second phase of the CEAS (2011-2013); however, the objectives sought were not duly achieved. Regarding the third objective of the second phase, an important step should be


noted concerning the fact that the scope of the Directive regarding long-term residents (worker migrants) has been extended to persons enjoying

international protection status (regardless of whether this is refugee or subsidiary protection status). As it is well known, since 2016, after the 2015 crisis, a third phase of CEAS is under discussion.

It is evident the CJEU’s decisions on the preliminary rulings presented by the national judges were fully present in the recast texts in the second phase. [38] The Qualification Directive of the second phase aimed to clarify some legal concepts such as “agents of protection,” “internal protection,” or “belonging to a particular social group.” Regarding the reception

conditions, the recast Directive in the second phase highlights, for example, that the applicants should have access to the labor market within a maximum of six months from the date they submit their application for international

protection. As far as the Procedures Directive is concerned (second phase), the amendments are, yet again, clearly inspired by the CJEU and the ECHR: the possible omission of the personal interview in the accelerated procedures is deleted; additional guarantees are added such as legal assistance for

applicants for international protection in procedures at first instance; special guarantees for vulnerable asylum applicants; and certain categories of applicants from accelerated or border procedures are exempt, etc.

That said, the question is obvious: if all of these instruments that make up the CEAS have been discussed, carefully considered, adapted, and amended, etc. for at least fifteen years (first and second phase of CEAS), how is it possible that the EU did not know how to manage what is known as the crisis of 2015? I will attempt to shed some light on this unsettling question in the last part of this article.

IV. The setting of the 2015 crisis.

By the end of 2015, there were 65.3 million people in the international community forcibly displaced on grounds of religious, racial or ethnic persecution due to armed conflicts, natural disasters, climate change, or

different types of deprivation of the most basic human rights in their countries of origin.[39]This figure is a distressing record in the post-Second World War world.


Regarding the EU, the first and most horrifying data are those of the

International Organization for Migration (IOM), which states that 5,082 people drowned trying to enter Europe during 2016, 3,777 in 2015, and 3,279 in 2014. The data of UNHCR (United Nations High Commissioner for Refugees) is very similar (5,022 people drowned in 2016, 3,771 in 2015, and 3,500 in 2014).

Apart from those who lost their lives, in 2015, around 1.26 million applications for international protection were lodged among all of EU Member States and these then granted international protection (refugee or subsidiary protection status) to a total of 333,350 people, which is 72% higher than in 2014.

[40] Approximately half of these people were Syrian nationals.[41]

There is obvious inequality on the map of recognition: 55% of international protection was granted in Sweden and Germany. Germany, for its part, tripled the figure for recognition of protection in 2014; Sweden (with less than 10 million inhabitants) granted more protection to more people than France and Spain put together, amounting to a population of over 110 million people.

In 2016 the number of first time applicants fell from almost 1.26 million (in 2015) to 1.20 million:

“The main contributions to the decrease were lower numbers of applicants from Kosovo, Albania and Syria. The number of first time asylum applicants in

Germany increased from 442 thousand in 2015 to 722 thousand in 2016. Greece and Italy also reported large increases. . . . Austria, the Netherlands, Slovakia, Belgium, Denmark, Finland, Hungary and Sweden reported less than half the number of first time asylum applicants in 2016 as in 2015; Norway also recorded a large fall”.[42]

See attached graph by clicking here. (File: Number of (non-EU) asylum seekers in the EU and EFTA Member States, 2015 and 2016 (thousands of first time applicants) YB17.png)

The last information available comes from the third quarter of 2017. The number of first time asylum applicants in the EU decreased by -55 % compared with the same quarter of 2016: “Overall, the number of persons seeking asylum from non-EU countries in the EU during the third quarter of 2017 was


164 300, a number around the levels recorded in 2014, before the 2015 peaks.”[43]

Regardless of the size of the effort made to recognize refugee or subsidiary protection statuses in the face of the 2015 crisis to first asylum applicants, there is another relevant issue that should also be mentioned: the low number of protection applicants who have been relocated by the EU Member States from Greece and Italy, after Greek and Italian asylum systems collapsed due to the high number of asylum seekers inside their territories.

On May 13, 2015, after around 1,000 people drowned to death in the Strait of Sicily, the European Commission approved the “European Agenda on Migration“.[44] Days later, on May 27, 2015, the Commission proposed a scheme based on quotas to relocate those applicants seeking protection who caused the protection systems in Greece and Italy to collapse. This enabled a first decision regarding a quota in a distribution key for 40,000 people to be relocated from Greece and Italy to other Member States. The distribution key was worked out according to the following criteria: the population and the GDP of each Member State was taken into account with a weighting of 80%, the national unemployment rate and the number of asylum seekers or those

resettled in that country in the period 2010-2014 with a weighting of 20%.[45] In addition, a quota of 22,000 resettlements was proposed from non-European countries of first asylum. Subsequently, on September 23, 2015, faced with a situation that noticeably worsened over the summer, the Commission proposed a second Decision to relocate a further 120,000 people.[46] All in all, the

relocation agreed from Greece and Italy was for a total of 160,000 people. The period of time to complete these relocation quotas was two years (from September 23, 2015 to September 23, 2017). The failure to deliver on these relocations is of common knowledge. Poland and Hungary have refused to accept a single asylum-seeker from Italy and Greece. Slovakia, which jointly with Hungary, unsuccessfully challenged the relocation scheme in the European Court,[47] and has only accepted sixteen of the 902 asylum-seekers it was assigned, while the Czech Republic only twelve of 2,691. Spain has fulfilled just 13.7% of its quota, and Belgium has fulfilled 25.6%. The Netherlands has fulfilled 39.6% of the target it committed to, and Portugal 49.1%. Malta is the only EU country that has fulfilled its quota. Norway and Lichtenstein opted in to


the scheme voluntarily, and both have fulfilled their commitments to relocate 1500 and 10 respectively. Notably, Finland has welcomed 1,951 seekers (or 94% of its legal commitment). Ireland has taken in 459 asylum-seekers, or 76.5% of its legal commitment.

Meanwhile, during this two-year period from 2015 to 2017, the lack of diligence displayed by EU Member States in relieving the overflow of asylum seekers in Greece and Italy was obvious, and they did not properly practice agreed-upon relocation and distribution keys. Thus, there was a state of need situation leading to Greece and Italy beginning their wave-through policy and, thus, they stopped applying the Dublin system. This wave-through policy led to the

Western Balkans route and the closing of up to eight internal borders of many other EU Member States. The death of Schengen began to be discussed.[48] This was the setting for the European Council meeting on March 17 and 18, 2016, which had more surprises in store: the EU One for One Plan with Turkey and the intention to declare Turkey a safe third country so as to be able to return to Turkey not only immigrants who entered the EU by irregular means and do not apply for international protection, but also applicants of international protection whose applications may not be accepted for processing due to considering that, for them, Turkey is a safe country. The new developments from the European Council on March 17 and 18, 2016 complete the EU-Turkey Joint Action Plan that was extraordinarily activated in the European Council of November 29, 2015. On the one hand, the EU-Turkey Joint Action Plan puts forward proposals for the improvement of reception conditions for Syrians with temporary protection in Turkey and, on the other, collaboration to close off Turkey’s border with the EU to prevent irregular immigration. The EU offered Turkey 3 billion Euros, along with progressive liberalization of short-stay visas for Turkish citizens, and the strengthening of Turkey’s accession to the EU. See attached graph by clicking here. (File: Member States’ Support to Emergency Relocation Mechanism). (As of 12 December 2017)

( do/policies/european-agenda-migration/press-material/docs/state_of_play_-_relocation_en.pdf

[1] Commitment legally foreseen in the Council Decisions, which does not include the 7,745 persons still to be allocated under the First Council Decision


and the 54,000 places which were made available for the purpose of legally admitting Syrians from Turkey to the EU.

[2] Norway, Liechtenstein and Switzerland have established bilateral

arrangements according to Article 11 of the Council Decisions and joined the relocation scheme. As part of these commitments Norway has formally pledged 1500 places, Switzerland 1460 & Liechtenstein 10

[3] Out of 39,600 originally foreseen to be relocated from Italy, 34,953 commitments have been legally foreseen in the Council Decisions.[4] Out of 66,400 originally foreseen to be relocated from Greece, 63,302 commitments have been legally foreseen in the Council Decisions.

[5] Of the 160,000, 7,745 have yet to be allocated from the 40,000 Decision and 54,000 unallocated places from the 120,000 Decision were made available for the purpose of legally admitting Syrians from Turkey to the EU.

On April 6, 2016, the Commission presented a new Communication called “Towards a reform of the Common European Asylum System and enhancing legal avenues to Europe.” This communication opened up discussion for a new CEAS recognizing the failure of the current common system. It included positive aspects (such as the strengthening of the European Office EASO), however the key issue consisted of quite unrealistic goals, to say the least.

Following this Communication, the Proposal for a reform of the Dublin System states that whenever a national asylum system is overloaded, there is a

mechanism automatically put in place to redistribute the asylum seekers across the European Union based on the pre-defined quotas. Furthermore, according to this proposal, the Member States that do not take in the percentage of

refugees they are allocated will have to make monetary contributions to help the financial envelope of the Member States that do take responsibility for their allocated percentage of refugees.[49] The amending of the Dublin System is considered alongside with a comprehensive reform of all other CEAS instruments; this global reform was presented on July 13, 2016 and currently continues being discussed.[50]


In the first part of this paper, the fact that Article 18 of the

Charter constitutionalized the right to asylum in the EU was stressed. Its progressive development through secondary legislation (directives, regulations, decisions) and, mainly, through the interpretation given by the CJEU, leaves us with a situation in which there is clearly an individual right to asylum in the EU. This situation clears up any doubts in the EU regarding the imperfect protection that has traditionally been attributed to the Geneva Convention.

As a corollary of Article 18 of the Charter and its progressive development, it should be noted that in the EU the following must be guaranteed as a minimum:

-Scrupulous respect for people’s right to seek asylum and non-refoulement to a country where their life, integrity or fundamental rights are in serious danger; -Reception of all people who apply for international protection in accordance with a minimum standard of conditions while their application is studied (Reception Conditions Directive);

-Recognition of the corresponding legal status in accordance with

the Qualification directive and the Procedures Directive regarding asylum for all people who meet the requirements to be recognized as a refugee or a

beneficiary of subsidiary protection, with absolute respect for the rights guaranteed by the CFREU;

-Return of those people with no grounds for international protection or any other protection derived from human rights law (for example, Articles 3, 8, and others of the ECHR), under conditions in accordance with their dignity and respecting the rest of their human rights (provided that this return is possible given the person’s situation and the country of origin or residence);

-Distribution of international protection applications among Member States in accordance with the principle of solidarity set out in Article 80 of the TFEU, by means of reasonable criteria and, at all times, preventing violation of Article 3 of the ECHR and Article 4 of the CFREU.

Nevertheless, the current crisis on asylum law in the EU which, having started gradually reached dramatic heights in 2015, highlights that Article 18 of the Charter (duly considered together with Article 53 of the same) is being violated in the European Union. What happened? The main infringement lies in the


ineffectiveness of the Dublin System which, along with the violation of Article 80 of the TFEU by the majority of Member States, has led to shameful

consequences for Europe and tragic consequences for humanity.

On the one hand, we can answer the question from the perspective of the legal framework and, on the other, from that of the political will of the States. In the opinion of some, the treaties establishing the EU (TEU and TFEU) do not currently establish a solid base for a mandatory rule of distribution in the event of a mass influx of third-country nationals. Thus, Article 78 (3) of the TFEU relating to the distribution of responsibilities among the EU Member States in the event that “one or more Member State(s) is confronted with an emergency situation, characterized by a sudden influx of third-country nationals” states that the Council of the EU may on the motion of the European Commission (it does not say must) propose distribution quotas to Member States regarding

responsibility for asylum applications.

However, in my view, Article 80 of the TFEU seamlessly imposes the obligation for Member States to act in line with the principle of solidarity (and thus, the distribution of responsibilities).[51] Nonetheless, the reality of the situation depicts collapsed asylum systems in several Member States that neither the EU institutions nor the rest of the Member States have been able to resolve.

An urgent reform of the Dublin System is clearly needed that establishes a mechanism to distribute the applications that exceed the reception capacity of any Member State. However, such a new system needs to include “not blind” distribution criteria; that is, it must include criteria that accounts for the social, economic and cultural ties of the asylum seekers regarding the Member States they are to be placed in, in order to assist their future integration in the State where they ultimately receive international protection.

The One for One Plan with Turkey consists of exchanging immigrants and applicants of international protection who are not admitted for ordinary processing (Syrian) for refugees (Syrian) under the temporary protection scheme in Turkey.[52] Many aspects of the Plan lead to its legality being questioned. Firstly, there is the strange legal nature of the document which does not show any trace of being an international agreement (it certainly has not respected the procedure set out for this purpose under EU law) or if it is a


mere declaration of intentions. The will of the parties seems to indicate that, while straying from the formalities established, we are faced with a reciprocal act that creates binding legal obligations for the parties. However, regardless of its dubious legal nature, its content seems to breach several obligations of international and EU law.

It is true that the CEAS, both the Procedures Directive (recast in 2013) and the Dublin regulation (Dublin III) refer to the concepts of first country of

asylum or safe third country (in which the applicant obtained or could and should have applied for protection) and safe country of origin (country whose circumstances are considered objectively incompatible with the production of applicants of international protection, although evidence to the contrary is admitted). Nonetheless, the ProceduresDirective specifies a series of conditions that the safe country must fulfill in order for the CEAS to allow applicants of international protection to be returned. Given how risky these concepts are from the point of view of human rights protection, it is to be expected that the CJEU will acquire an important role in resolving appeals requesting clarification on their correct and uniform application.[53] This would be a very good way of clarifying up to what point the EU Member States can delegate fulfillment of their obligations regarding applicants of international protection to third countries. Meanwhile, why is Turkey not a suitable candidate to be considered a safe third country?

-First and foremost because there are no guarantees that Turkey is complying with the principle of non-refoulement regarding possible returns to Syria. [54] In addition, the Procedures Directive requires the safe third country to fulfill the principle of absolute respect against torture and inhuman treatment including non-refoulement to the country violating said principle, along with a case-by-case analysis of the applications, and some sort of connection to be held by the person with the safe country they are being sent to.

– Second, Turkey only provides Syrians with temporary protection (Law of April 2014), although the new regulations of January 2016 provide them with access to education and the labor market. Article 38(1)(e) of the Procedures Directive (2013) sets forth that in a safe third country the person must have “the possibility . . . to request refugee status and, if found to be a refugee,


to receive protection in accordance with the Geneva Convention”. Turkey ratified the Geneva Convention with the reservation of only recognizing refugees of European nationality and not those of other nationalities;[55] it has never lifted said restriction, nor does it seem to have the intention of doing so. The European Commission has already deemed that Article 38 of the Directive does not necessarily imply ratification of the Geneva Convention without

reservations. Only a preliminary ruling by the CJEU can clear up all of our doubts once and for all.

-Third, the readmission agreement between Greece and Turkey, which as of June 1 was replaced by the new readmission agreement between the EU and Turkey, does not constitute a legal basis but is rather a mere tool to adopt individual decisions on return that are laid down by the Return Directive.

At the end of the day, it is important to remember that whenever state interests or those of integration organizations (such as the EU) are apparently confronted with the due protection of human rights, their prevalence over any other

legitimate interest must be dealt with and prioritized (see Articles 6 TEU and 21 of the Charter of Fundamental Rights of the European Union).

In the meantime, there are no longer any doubts regarding some things: Article 18 of the Charter and its progressive development has now consolidated an individual right to apply for and receive asylum in the EU on different grounds that may lead to the status of refugee, subsidiary protection, or another type of humanitarian protection (ECHR), and the disagreement regarding the

distribution of responsibilities of each Member State cannot lead to gross violations of a fundamental human right that is duly guaranteed by the Charter.

My current deeper concern is whether some Member States and the European institutions have –also- began to apply to Libya a category of safe

third-country. If that were the case, unfortunately, we might have started a new Era in Europe, far from the right to asylum and to European binding human rights obligations. The situation concerning the progressive externalization of the EU border is a dangerous strategy, which in my view, can’t be permitted without clearly opening legal and secure channels for human beings trying to enter Europe to have access to apply for asylum in a safely manner.


[1] Charter of Fundamental Rights of the European Union art. 18, Dec. 7, 2000, 2012 O.J. (C 326) 391, (hereinafter Charter) (The Charter became legally binding with the entry into force of the Treaty of Lisbon. It has the same status as the treaties establishing the EU.).

[2] Charter, supra note 1, art. 53.

[3] In this article, I am consciously using the expressions “right to asylum” or “right to receive asylum,” and not the more common “right of asylum,” as I believe the latter to be less fitting in regard to the fundamental right recognized under the Charter. See, e.g., Joined Cases 175 & 176/08 and 178 & C-179/08, Abdulla v. Bundesrepublik Deutschland, 2010 E.C.R. I-1493 (EU asylum regulations must be interpreted in light of the fundamental rights, especially the right to asylum recognized under Article 18 of the Charter). [4] The United Nations Convention relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137 (entered into force on a general basis on April 22, 1954).

[5] Treaty on European Union and Treaty on the Functioning of the European Union, Consolidated, 2010 O.J. (C 83/1) 47 (hereinafter TEU and TFEU). [6] See C.J. Gortázar Rotaeche, El respeto a las libertades

fundamentales (IV): el derecho de asilo y la protección en caso de devolución, expulsión y extradición (“No hay camino, se hace camino al andar”) [Respect for Fundamental Freedoms (IV): The Right of Asylum and Protection in the Event of Removal, Expulsion and Extradition (There is no Path, the Path is Made by Walking)], in 2 Tratado de derecho y políticas de la Unión Europea, derechos 609, (J.M. Beneyto Pérez et al. eds., 2009); see also Case C-411/10, N.S. v. United Kingdom, 2011 E.C.R. 865 (the CJEU has been very cautious in discussing the content of Article 18 of the Charter).

[7] The fact that community competences on the matter have been extended – after the Treaty of Lisbon came into force — and are no longer restricted to adopting common minimum standards, but rather to adopting common regulations and procedures, is a fundamental tool in this progressive development of the right to asylum in the EU.


[8] See C.J. Gortázar, Rotaeche, Desarrollo progresivo en la UE de la protección internacional contra los tratos inhumanos: lecciones que nos deja Hirsi Jamaa y otros v. Italia (TEDH, 23 de febrero de 2012) [Progressive Development of international Protection Against Inhuman

Treatment in the EU: Lessons we have Learned from Hirsi Jamaa and others v. Italy (ECHR, 23 February 2012)], inGlobalización y Derecho: desafíos y tendencias 1051, (F. Gomez et al. eds., 2013).

[9] See Case C-465/07, Elgafaji v. Staatssecretaris van Justitie, 2009 E.C.R. 1-00921 (in a preliminary ruling before the Treaty of Lisbon, the Court noted the importance of the existence of serious and individual threats to the life or person of an applicant for subsidiary protection). Thus, the CJEU, sets out in its

decision that Article 15(c) of Directive 2004/83/EC (Qualification Directive, before the recast text) must be interpreted as meaning that the existence of serious and individual threats to the life or person of an applicant for subsidiary protection is not subject to the condition that the applicant adduces

evidence of specific targeting by reason of factors particular to his personal circumstances. The existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterizing the armed conflict taking place — assessed by the competent national authorities to which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an

application is referred — reaches such a “high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that

country or region, face a real risk of being subject to that threat.” See id., ¶ 43.

[10] See, e.g., Joined Cases C-71/11 & C-99/11, Bundesrepublik Deutschland v. Y and Z, ECLI:EU:C:2012:518 (Sept. 5, 2012) (establishing Directive

2004/83/EC (Qualification directive before the recast text) must be interpreted as meaning that not every interference with religious freedom that infringes Article 10(1) of the Charter of Fundamental Rights of the European Union constitutes an “act of persecution” within the meaning of the Directive. In


order to determine whether undermining the right to religious freedom, which infringes Article 10(1) of the Charter of Fundamental Rights constitutes an “act of persecution,” the competent authorities must assess, given the

circumstances of the person in question, whether or not there is danger of being persecuted or of suffering inhuman or degrading treatment or punishment by any of the actors referred to in Article 6 of the Directive. Article 2(c) of the Directive must be interpreted as meaning that “the applicant’s fear of being persecuted is well-founded if, in light of the applicant’s personal circumstances, the competent authorities consider that it may reasonably be thought that, upon his return to his country of origin, he will engage in religious practices which will expose him to a real risk of persecution” (the authorities cannot reasonably expect the applicant to abstain from these religious practices.)).

[11] Furthermore, in the Charter, supra note 1, art. 52 § 3, in Title VII on

General Provisions that govern the interpretation and application of the Charter, sets out: “In so far as this Charter contains rights which correspond to rights guaranteed by the European Convention for the

Protection of Human Rights and Fundamental

Freedoms, the meaning and scope of those rights shall be the

same as those laid down by said Convention. This provision shall not prevent Union law providing more extensive protection.“

[12] Even within the EU, see for example: Claro Quintans, I, “Tribunal de Apelación, 13 July 1999 y Cámara de los Lores, 19 December 2000” [Court of Appeal, 13 July 1999 and House of Lords, 19 December 2000] in 52.2 Revista Española de Derecho Internacional [Spanish Journal of International Law] 449.

[13] Two preliminary rulings by the CJEU are relevant regarding the well-founded fear of persecution on grounds of sexual orientation (as a particular social group). See Joined Cases C-199/12 to C-201/12, Minister voor, Immigratie en Asiel v. X, Y and Z, 2013 EUR-Lex CELEX LEXIS 720

(November 7, 2013) (In this case, the CJEU ruled as follows: Art. 10(1) (d) of Directive 2004/83/EC (Qualification Directive before the recast text) must be interpreted as meaning “that the existence of criminal laws, such as those at issue in each of the cases in the main proceedings, which specifically target


homosexuals, supports the finding that those persons must be regarded as forming a particular social group”. Article 9(1) of Directive 2004/83, read together with Article 9(2)(c) thereof, must be interpreted as meaning that the criminalisation of homosexual acts per se does not constitute an act of persecution. However, “a term of imprisonment which sanctions homosexual acts and which is actually applied in the country of origin which adopted such legislation must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution”. When assisting with the application for protection “the competent authorities cannot, in order to avoid the risk of persecution, expect the applicant to conceal their

homosexuality in their country of origin or to exercise restraint in relation to their sexual orientation.”). See also Joined Cases C148/13 to C150/13 A,

B and C v. Staatssecretaris van Veiligheid en Justitie, 2014 EUR-Lex CELEX LEXIS 2111 (December 2, 2014) (The CJEU held that Article 4(3)(c) of Directive 2004/83/EC (Qualification Directive, before being recasted) and Art. 13(3) of Directive 2005/85/EC (Asylum Procedures Directive, before the recast text) must be interpreted as meaning that in the context of evaluation by the

competent national authorities, who act under the supervision of the courts, of the facts and circumstances relating to the sexual orientation declared by the asylum applicant, whose application is based on the fear of persecution on grounds of said sexual orientation; the applicant’s statements, documents and other evidence submitted in support of their application must be subject to an assessment by said authorities consisting of questions solely based on notions of stereotypes relating to homosexuals. The Advocate General identifies

verification practices that are incompatible with Articles 3 (right to the integrity of the person) and 7 (respect for private and family life) of the Charter of

Fundamental Rights of the EU, even when consent is given by the applicant: (1) medical examinations that aim to determine the sexual orientation of the

applicant; (2) pseudo-medical examination of phallometry (assessment of the applicant’s response to watching pornography); (3) explicit questioning on the sexual activities and tendencies of the applicant; (4) require the applicants to “produce evidence, such as films or photographs in order to prove their sexual orientation.” Id., at ¶ 66. Currently, a third case is pending, Case C-473/16 F v. Bevándorlási és Állampolgársági Hivatal, (2016/C 419/40). The case


concerns a Nigerian national who had submitted an application for international protection in Hungary based on his sexual orientation, and dealt with the use of projective personality tests and other means for ‘proving’ sexuality. See also, N uno Ferreira & Denise Venturi Tell me what you see and I’ll tell you if you’re gay: Analysing the Advocate General’s Opinion in Case C-473/16, F v Bevándorlási és Állampolgársági Hivatal, EU Immigration and Asylum Law and Policy, Odysseus Blog (Nov. 24, 2017) analysing-the-advocate-generals-opinion-in-case-c-47316-f-v-bevandorlasi-es-allampolgarsagi-hivatal/.

[14] C.J. Gortázar Rotaeche,. El derecho de asilo y el no-rechazo del refugiado [The Right of Asylum and Non-Rejection of the Refugee], Madrid, (Universidad Pontificia Comillas, 1997).

[15] Evidence that the Geneva Convention is not a convention that contains an individual right toasylum as comprehensive and durable protection can be seen in the following irrefutable historic fact: the international community was witness to its own failure when it attempted to make the States agree to a convention that contained obligations regarding the right of asylum. Thus, in 1977, a diplomatic conference was held in Geneva with representatives of 92 states in order to adopt a convention that contained obligations for the states regarding territorial asylum (which included the person’s individual right to asylum);

nonetheless, said conference did not achieve its goal and none of the proposed tenuous state obligations regarding asylum were approved. None of the items discussed in the conference went on to form part of its plenary session and it concluded by proposing a forthcoming session which never took place. Id. at 179-199.

[16] Council Directive 2011/95/EU, On Standards for the Qualification of Third-country Nationals or Stateless Persons as Beneficiaries of International

Protection, for a Uniform Status for Refugees or for Persons Eligible for Subsidiary Protection, and for the Content of the Protection Granted (recast). O.J. (L 337) 9.

[17] See Maria-Teresa Gil-Bazo, Refugee Status and Subsidiary


Be Granted Asylum, in The UN Refugee Agency Policy and Development and Evaluation Series, Nov. 2006, 229.

[18] Commission Regulation 604/2013, Establishing the Criteria and

Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection Lodged in one of the Member States by a Third-Country National or a Stateless Person. 2013 O.J. (L 180) 31 (in

jargon, Dublin III). There is currently already a proposal for Dublin

IV, see Proposal for a Regulation of the European Parliament and the Council Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection Lodged in one of the Member States by a Third-country National or a Stateless Person (recast), COM (2016) 290 final (Apr. 5, 2016).

[19] Council Directive 2013/33/EU, Laying down Standards for the Reception of Applicants of International Protection (recast text), 2013 O.J. (L 180) 96.

[20] Council Directive 2013/32/EU, On Common Procedures for Granting and Withdrawing International Protection (recast), 2013 O.J. (L 180) 60.

[21] Council Directive 2011/95/EU, supra note 16.

[22] See Charter, supra note 1, art. 41. In part, Article 41 states, “Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union. This right includes: the right of every person to be heard, before any individual measure which would affect him or her adversely is taken; the right of every person to have access to his or her file, while respecting the legitimate interests of

confidentiality and of professional and business secrecy; the obligation of the administration to give reasons for its decisions.”

[23] Article 47 states: “Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is

necessary to ensure effective access to justice.” See Charter, supra note 1, art. 47.


[24] At present, its main pillars are: a) the Dublin System on the criteria to determine which EU Member State is responsible for examining each

international protection application. The Dublin System has been reformed several times but has still not managed to get it right as it places too much responsibility on the Member States that are geographically closer to the conflicts and persecutions (at the time of writing, its fourth reform is under discussion). b) The Reception Conditions Directive which grants all applicants of international protection (whether applying for refugee

or subsidiary protection status) the right to a room, maintenance, medical assistance, education for minors and, after a few months, access to the labor market. The most important right is the right of non-refoulement. c)

The Procedures Directive which grants all applicants the right to have their application studied in a fair and effective procedure and with minimum guarantees of appeal; it also means Member States must undertake the procedures with common and harmonious guarantees. d)

The Qualification Directive which sets out that Member States must have a common and harmonious interpretation and application of the concept of refugee and subsidiary protection, and also of the rights that said statuses entail. e) The Temporary Protection Directive which enables group recognition (prima facie), in these cases a temporary protection status is granted while the cases are individually studied. This temporary protection (rather rights-based) may last up to three years; but before it expires, it must be studied on an individual basis. This Directive has never been activated, not even during the 2015 crisis. f) The European Asylum Support Office (EASO) is a European Agency created to help Member States fulfill the obligations of the CEAS, especially in cases where there is an overflow of applications in national reception systems. Currently, after the 2015 crisis, all those pillars are under an important reform process.

[25] In Spain, the late incorporation of the first Qualification Directive in domestic law meant that judgments from the Supreme Court deemed that humanitarian protection, alone, was enough. Had the Directive been transposed in good time and in an appropriate manner, the Court would likely have recognized at least a subsidiary protection status. See, for instance,


Supreme Court Judgment of 18 October 2012 RJ 2012\9905, which recognizes that a Syrian national may stay in Spain for humanitarian reasons due to the general situation of conflict or lack of protection of human rights in their country. According to the wording of the current Spanish asylum law 12/2009, after appropriate transposition of the Qualification Directive in Spain, this case would receive at least a subsidiary protection status.

[26] See Joined Cases C-175/08 & C-176/08 and C-178/08 & C-179/08,

Abdulla v. Bundesrepublik Deutschland, 2010 E.C.R. I-1493, which refers to the causes of cessation of the status. The court understands that Article 11(1)(e) of the Qualification Directive (before recast text) must be interpreted as meaning that the condition of refugee ceases to exist when, considering a sufficiently significant change in circumstances and without being of a temporary nature in the third country in question, the circumstances that justified that person’s fear of persecution for one of the reasons established in Article 2(c) of the Directive (based on those that conferred the condition of refugee) no longer exist, and that person has no other reason to fear

being persecuted under the meaning of Article 2(c) of the Directive. With the aim of evaluating a change in circumstances, the competent authorities of the Member State must verify, given the individual situation of the refugee, that the actor or actors of persecution referred to in Article 7(1)(c) of the Directive have taken reasonable steps to prevent persecution by operating an effective legal system, among others, to detect, prosecute and punish any acts constituting persecution and that the national in question has access to this protection if they cease to have the status of refugee. The actors of protection referred to in Article 7(1) (b) of the Directive may be international bodies controlling the State or a substantial part of the territory of the State, even by means of the presence of a multi-national force in this

territory. When the circumstances that led to the guaranteed status of refugee no longer exist and the competent authorities of the Member State verify

that no other circumstances exist to justify a fear of persecution for the person in question for the same reason or any others stated in Article 2(c) of the Directive, the standard of probability to be used by the Member State


to assess the risk regarding these other circumstances is the same as that used to guarantee the status of refugee.

[27] The preliminary ruling by the CJEU in Joined Cases 57/09 & C-101/09, Bundesrepublik Deutschland v. B and D, 2010 E.C.R. I-10979, consisted of refusing to protect two asylum applicants in Germany based on the grounds for exclusion in the Qualification Directive of 2004 (thus before the recast text). The CJEU sets forth that Article 12(2)(b) and 12(2)(c) of the Directive (which contains exclusion clauses such as those included in Article 1(f) of the Geneva Convention) must be interpreted as meaning that the fact that a person has been a member of an organization which, due to its

involvement in acts of terrorism, forms part of the list in the Annex to the Council Common Position, of December 27, 2001, on the application of specific

measures to combat terrorism (2001/931/CFSP) and that the person has actively supported the armed conflict led by this organization, does not automatically constitute serious grounds to consider that the person in question has committed a “serious non-political crime” or “acts contrary to the purposes and principles of the United Nations”. In this context, whether or not there are serious reasons to consider that this person has committed a similar crime or that he is guilty of these acts is dependent upon a case-by-case assessment of the specific facts. The exclusion of granting refugee status in Article 12(2)(b) or 12(2)(c) of the Directive is not dependent upon whether the person in question represents a danger for the host Member State.Neither does the exclusion of granting refugee status in Article 12(2)(b) or 12(2)(c) of the Directivedepend upon a

proportionality assessment in relation to the specific case. Furthermore, Article 3 of the Directive must be interpreted as meaning that the Member States must guarantee the right of asylum (humanitarian protection) under their domestic law to persons who are excluded from the status of refugee pursuant to Article 12(2) of the Directive, provided that said other type of protection does not involve a risk of confusion with the status of refugee as set out by the Directive.

[28] I will leave the analysis of the concept of a safe country for another time as it requires not only a strict application and interpretation but also, in my view,


one that is restrictive, bearing in mind the dramatic consequences of its

potential incorrect use (see the consequences of the EU-Turkey Assessment of March 18, 2016 and also current consequences of the Memorandum of

Understanding between Italy and Libya).

[29] Council Directive 2011/95/EU, supra note 16, art. 24(2). [30] Id., art. 29(2).

[31] Council Regulation 604/2013, supra note 18, (“Dublin III”).

[32] M.S.S. v. Belgium and Greece [GC], App. no. 30696/09, ECHR (January 21, 2011).

[33] Joined Cases C-411/10 & C-493/10, N.S. v. United Kingdom, 2011 E.C.R. 865. In this case, the CJEU sets forth that Article 4 of the Charter of

Fundamental Rights of the EU (the content of which is exactly the same as Article 3 of the ECHR) must be interpreted as meaning that the Member States, including the national courts, may not transfer an asylum seeker to the “Member State responsible” within the meaning of the Dublin

Regulation (Dublin II) where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial

grounds for believing that that asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the

meaning of that provision.Notwithstanding its right to examine the

application itself (based on Article 3(2) of the Dublin Regulation), the Member State must continue to assess the criteria set out in Chapter III of this

Regulation in order to establish whether another Member State can be identified as responsible for the examination of the asylum application. The Member State in which the asylum seeker is present must, however, ensure that it does not worsen a situation in which that applicant’s fundamental rights have been infringed by use of a procedure for determining the Member State responsible which takes an unreasonable length of time. If necessary, it must itself examine the application in accordance with the procedure laid down in Article 3(2) of Regulation No 343/2003. Articles 1, 18 and 47 of the Charter do not lead to a different answer from that given above.


Later in the preliminary ruling relating to Case C-4/11, Bundesrepublik

Deutschland v. Kaveh Puid, ECLI:EU:C:2013:740 (November 14, 2013), the CJEU ruled that a Member State cannot be unawarethat there are

deficiencies in the asylum process and in the reception conditions of asylum seekers in the Member State initially responsible in accordance with the criteria set out in Chapter III of the Dublin Regulation and establishes the reasons why it is believed that an asylum seeker faces a real risk of suffering inhuman or degrading treatment in accordance with Article 4 of the CFREU and,

therefore, the Member State must not transfer the applicant to the Member State initially responsible but rather, after having examined their application, it shall continue to examine the criteria to find out whether another Member State may also be responsible (if there is not, it is inferred that that State, where the applicant is present, must examine the application).

[34] See generally, Commission Regulation 2725/2000, 2000 O.J. (L 316) 1. [35] See generally, Council Directive 2013/33/EU, 2013 O.J. (L 180) 96. [36] See generally, Directive 2011/95/EU, 2011 O.J. (L 337) 9.

[37] See generally, Regulation 439/2010, 2010 O.J. (L 132) 11. [38] Inter alia, the CJEU delivers a preliminary ruling in the case

C-394/12, Abdullahi v Bundesasylamt, EU:C:2013:813 (Dec. 10, 2013), and established that Art. 19(2) of the Dublin Regulation must be interpreted such that, when a Member State is responsible for an application based on the criteria set out in Art. 10(1) of this Regulation (that is to say, the Member State that first receives the application), the only way that the applicant

may challenge the decision is by demonstrating deficiencies in the asylum process and in the reception conditions of the applicants,which provides substantial grounds to believe that the asylum seeker could face a real risk of inhuman or degrading treatment in accordance with Art. 4 of the Charter of Fundamental Rights of the European Union. Consequently,

the Dublin III Regulation (Regulation 604/2013, applicable from Jan.1, 2014) accepts this judgment since the recast Regulation requires Member States to guarantee the applicant’s right to appeal or review the arguments of fact and law against their transfer due to application of the Dublin Regulation.


[39] UNHCR, Global Trends in 2015 (2016). Available at:

http:// (last visited Nov. 26, 2017).

[40] Eurostat Statistics Explained, Asylum Statistics, (March 2, 2016), (last visited Nov. 26, 2017).

[41] See generally, Id. After Syria, but with a large gap, the nationalities that benefited most from EU protection in 2015 were Eritrea and Iraq.

[42] Id.

[43] Eurostat Statistics Explained, 3º Asylum Quarterly Report (data extracted on December 12, 2017),

[44] Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on A European Agenda on Migration, COM (2015) 240 final (May 13, 2015).

[45] Although the Decision still took two months to be approved, see Council Decision (EU) 2015/1523 of Sept. 14, 2015 (establishing provisional measures in the area of international protection for the benefit of Italy and of Greece), 2015 O.J. (L 239) 146.

[46] Council Decision (EU) 2015/1601 of Sept. 22, 2015 (establishing provisional measures in the area of international protection for the benefit of Italy and of Greece), 2015 O.J. (L 248) 80.

[47] Joined Cases C-643/15 and C-647/15, Slovak Republic and Hungary v. Council of the European Union, ECLI:EU:C:2017:631 (Sept. 6, 2017).

[48] Communication from the Commission to the European Parliament, the European Council and the Council Back to Schengen, at 2, COM (2016) 120 final (March 4, 2016) (“Restoring the Schengen area, without controls at internal borders, is therefore of paramount importance for the European Union as a whole. . . . The free exchange of goods within the EU currently accounts for more than €2,800 billion in value and 1,700 million tonnes in volume. The highest and most immediate impact of border controls would be felt by the road haulage sector, with an additional €1.7 to €7.5 billion of


Netherlands or Germany would face more than €500 million of additional costs for the road transport of traded goods while others such as Spain or the Czech Republic would see their businesses paying more than €200 million in additional costs. Border controls would cost commuters and other travelers between €1.3 and €5.2 billion in terms of time lost. The Commission estimates that at least 13 million tourist nights could be lost in the EU due to the reduction of

intra-Schengen tourist trips caused by cumbersome border controls, with a total cost of €1.2 billion for the tourism sector. If border controls also bring a

fragmentation of the EU common visa policy, the potential impact for the tourism industry could multiply (between €10 and €20 billion).)”).

[49] See Commission Proposal for a Regulation of the European Parliament and the Council Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection Lodged in one of the Member States by a Third-country National or a Stateless Person (recast), COM (2016) 270 final (May 4, 2016) (“Dublin

IV”); see also, Constantin Hruschka, “Dublin est mort, vive Dublin ! La

proposition de réforme du 4 mai 2016 de la Commission européenne 24 May 2016″ (last visited Sept. 27, 2017).

[50] See European Parliament, Legislative Train Schedule Towards a New Policy on Migration (explaining the current comprehensive reform of the CEAS), (last visited Dec. 12, 2017).

[51] TFEU, supra note 5, art. 80 (“The policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the Union acts adopted pursuant to this Chapter shall contain appropriate measures to give effect to this principle.”). [52] It is important to remember that the European reciprocity in this One for One Plan only managed to achieve 72,000 resettlements (which is really the sum of the 18,000 still pending from the agreement in May 2015 and the intra-EU relocation quota of 54,000 already agreed with Hungary which was never distributed).


[53] On the eve of the European Council’s conclusion of March 17 and 18, 2016 approving the EU –Turkey Plan, the decision of the CJEU was published

regarding the preliminary ruling on Case C-695/15, Shiraz Baig

Mirza v. Bevándorlási és Állampolgársági Hivatal. The CJEU understands that Article 3(3) of the Dublin III Regulation must be interpreted such that a Member State can send an asylum seeker to a safe third country (Serbia in this case) provided that it has accepted its responsibility concerning

readmission of the asylum seeker in accordance with the provisions of the Dublin III Regulation.

[54] Amnesty International has repeatedly alerted us to the returns of groups of up to 100 Syrian men, women and children over recent months. International non-governmental organizations warn that Turkey is closing the entry of asylum applications from Syria and Iraq.

[55] Text of the declarations and reservations to the Convention Relating to the Status of Refugees of July 28, 1951 made by the Government of the Republic of Turkey,