Towards a human rights-based asylum system for European policymakers:

The diachronic analysis of the EU asylum system, supported by both secondary data and fieldwork primary data, has revealed the weaknesses of the Common European Asylum System (CEAS) in terms of effective protection of migrants’ human rights.

In particular:

  • Increasing emphasis on return policies (forced and voluntary) as compared to asylum and integration processes, at both EU and national level.
  • Growing repressive approach to migration and asylum [1]. The tightening of national legislation (e.g. the Italian case) has led to an increase in refusals of asylum claims and, consequently, in the numbers of people with absolutely access to state support (the so-called “OOP”, Out of Procedure asylum seekers).
  • Strengthening of External Border policies (e.g. deals between the EU and Third-countries, decreasing rescue interventions in the Mediterranean Sea).The data on arrivals along with individual migrants’ stories attest to the increasing difficulties for migrants in reaching the EU and, consequently, in gaining access to asylum application procedures even when technically qualifying for protection.
  • Implementation of the Hotspot Approach (since 2015). The Hotspot Approach has led to increasedcontainment mechanisms at internal borders, forced transfers between Member States, and deportations (Kasparek, 2016), to the extent that the direct role of these policies “in producing [new] refugees” has been noted (Tazzioli, Garelli, De Genova, 2018, p. 245).
  • The gap between human-rights law and the practices both within individual Member States and along internal EU borders. NGOs and migrants have reported several abuses by authorities during different stages of the asylum procedure as well as at internal border areas, the latter in relation to pushback operations (e.g. fieldwork in Ventimiglia).   
  • The inadequacy of the Dublin System. The shortcomings of the System relate to a) Refugees’ and asylum seekers’ rights (see critical aspects underlined by ECRE, UNHCR and the Council of Europe Commissioner for Human Rights); b) the phenomenon of “secondary movements” inside the EU; c) tensions between different Member States with regards to migrant transfers and relocations. 

By starting from these critical issues, it is possible to identify specific compensatory measures to reinforce the link between asylum management and the respect of migrants’ human rights. There are two different levels of possible actions. The first set of measures can be implemented relatively quickly; the second – and most crucial – set of measures requires more complex and articulated changes in the CEAS structures that renders them more likely applicable over a longer term [see item n. 2].

1] To overcome the CEAS problematics, EU migration policymakers should:

a) Guarantee:

  • The centrality of the Geneva Convention in the implementation of the CEAS and not only its reference in general terms. Human-rights concerns must take priority over external border controls and return policies.
  • Increased funds for the provision of basic human rights – such as housing and health services – for migrants, regardless of their legal status, in all the Member States. This measure is essential in tackling the increasing precariousness and homelessness connected with the end of the asylum procedures and the discharge of migrants from asylum centres (both in the case of positive and negative outcomes). The measure would also have a positive effect in indirectly containing the secondary movements related to the search for an appropriate housing location.

b) Reconsider:

  • The dichotomy between “forced” and “economic” migrants. – In practical terms, it is highly problematic to exclude the economic reason as a mandatory force that drives people to move from a country to another one. A vast number of the so-called “economic migrants” are escaping from a situation of extreme poverty.
  • The “safe country” concept. Art. 3 of the Geneva Convention establishes the right to be protected against “cruel treatment and torture […] and outrages upon personal dignity, in particular humiliating and degrading treatment.” The “safe country” concept is used in several Member States in order to accelerate the asylum procedure by excluding those people arriving from countries considered to be secure. This fast-track procedure seems to contradict the possibility of taking into account the personal situation of every asylum seeker. Furthermore, it is important to move beyond the “safe country” criterion and to protect people who are often extremely vulnerable due to trauma experienced along their journey to the EU.
  • The current Dublin III Regulation, in particular the criteria and mechanisms for determining the Member State responsible for examining an asylum application. As indicated in a resolution approved by the European Parliament on 12 April 2016, a more equal process of redistribution of asylum seekers on EU territory is needed, incorporating the key concepts of “family unity” and “the best interests of the child” [2]. 
  • New ways to directly regularise irregular people on EU territories. One possible measure to be implemented in all EU countries would consist in converting a migrant’s irregular status in case of a job found in said country.
  • Suspending all agreements with third countries that do not respect “human rights”. Instead, in such places (e.g. Libya) focus should rest on expanding humanitarian corridors to allow the safe arrival of people in the EU.

c) Regulate and monitor that all Member States:

  • Implement specific plans focusing on what rights migrants and asylum seekers have, and on ways to address current gaps in the implementation of national legislation.
  • Provide real and documentable access to facilities in cases relating to international protection (jobs, housing facilities, and effective integration programs).
  • Guarantee more information and access to asylum procedures for migrants in need.
  • Guarantee a clear time frame for the asylum procedure (not necessarily aimed at shortening procedures).
  • Guarantee a form of external control during interviews for asylum claims (via NGOs officers and/or National guaranteeing associations).Some migrants have reported situations more akin to police interrogations than interviews designed to establish protection rights.
  • De-criminalise migration and humanitarian assistance.

d) Furthermore, more effective sanctions are needed against EU Member States that do not respect human rights (e.g. closed port policies; lack of at sea rescue) or do not collaborate with other Member States in relocation schemes.

2] In line with indications provided by PACE [3], the most appropriate way to implement the CEAS and harmonise Member States’ legislations is the creation of a “European Refugee status”. This new status would allow migrants to move freely inside the EU as soon as they receive it. The future of the CEAS should be shaped and implemented in order to achieve not only a more concrete level of ‘solidarity’ between Member States (that is still lacking), but also to ensure real opportunities for migrants to arrive in the EU, obtain asylum, and live in a setting where social and economic integration is realistically achievable.