About the Ground Gaining Efforts of the European Commission in Asylum Policy

About the Ground Gaining Efforts of the European Commission in Asylum Policy

Automatic distribution of asylum seekers between the member states? Uninvited European agency intervention to shape a member state’s asylum policy? The cancellation of work permit checks for asylum seekers? – to name just a few cornerstones of recent legislative proposals of the European Commission, which could influence life in the member states right away. If the member states allow…

… because the member states form two distinct camps when deciding whether or not the European Union should have a common asylum policy. In order to understand the competence debates dominating recent political discourse, we need to look back: the European Union has been working on overcoming the obstacles to a common European asylum policy, and converging the practice of member states since the 1999 Tampere European Council, but the objective of reaching a common political level (quasi common political rank) was formally declared only when the Lisbon Treaty took effect on December 1, 2009[1]. The Lisbon Treaty only set the direction of a de facto common asylum policy; and it did that under circumstances essentially different from today’s. Formerly, Union law regulated individual asylum-related (procedural, inclusion, and decision method) questions only at the level of directives, as the main instrument of legislation alignment. This form of legislation was mindful of the shared competence of the European Union and the member states in this area, and provided a measure of freedom for member states to decide on the method of national legislation used to reach the goal seat out in the directive. Regulation – as the main instrument of legal unification – has been rather sparse in asylum-related areas, except for the much debated second and third generation Dublin Regulations, and the provisions on a single European fingerprint register (Eurodac), which formed a mandatory set of rules for the member states.

The events of 2015 opened a new era in this rather clear-cut system of shared competence. Last year, an unprecedented migratory pressure reached the countries of the European Union: over 1.3 million people sought international protection in one of the member states, which was about twice the number seen in the year before. The wave of migration, arriving from Greece and through the countries of the Western Balkans region, did not spare Hungary either, and caused severe disturbances in the care system of the Western European member states. This migration held up a mirror to the leaders of the European Union, and soon uncovered the system-distorting discrepancies that were there between the so-called Schengen area, a borderless region begotten by the idea of a „safe Europe”, and the practice of abuse for decades.

In May of 2015, the European Commission published its ideas on handling the crisis, but it came up with a proposal – in two parts – only a year later. All legal proposals referred to the principle of subsidiarity[2]. The package of proposal for a „sustainable and fair” common European asylum system was presented by the Commission on May 4th, 2016[3]. These amendment proposals include a reform of the much-debated Dublin system, the turning of the European Asylum Support Office into a fully-fledged European agency, and notions to strengthen Eurodac, the European fingerprint database. The second part of the reform proposals were published by the Commission on July 13th, 2016. These aimed to harmonize and re-regulate the above mentioned policy-level rules[4] on one hand, and promote a unified case-law for relocating foreigners still residing in third countries into a member state of the Union on the other. We will analyse those reform proposals of the Commission, which clearly deviate from the Lisbon concept of the unified asylum policy as a goal to reach. While the Lisbon concept considered the emergency case of mass migration an exception[5], these reform proposals allow for a much larger measure of intervention for the European Commission and individual European agencies.

Let’s start with one of the most important proposals of the Commission, which met with the resistance of several member states. In essence, this has to do with a proportional allocation of European asylum seekers between the member states, going from voluntary member state participation[6] to the concept of a mandatory relocation model. As pointed out by the  Meijers Committee, seated in Holland, providing legal advice in connection with the May proposals of the European Commission,[7] only three years have passed since the last „reformation” of the quarter of a century long Dublin system, but the basic defects of the system –  such as the circulating migration of applicants, the excessive duration of procedures, and the disproportionate pressure on member states located at the outer border of the Union – could not be fixed, either then or now. The European Commission’s new ideas far exceed an effort to pay an old debt. Apart from shortening procedural deadlines, linking the asylum seekers’ admission entitlement with an allocated place of residence, and other technical fine-tuning, there is a brand-new initiation, the so-called fairness mechanism (in other words, a corrective distribution mechanism). The essence of this initiation is this: Inasmuch as the number of asylum applications exceed the limit set by the reference key – calculated on the basis of the gross national product and the population size of a given country –, the asylum seeker will be automatically redirected to another member state to process the application, thus relieving the member state on the verge of its capacities. This element of the proposal is a disguised repetition of the European Commission’s much debated proposal of September 9th, 2015, known as „mandatory settlement quota” from the media, which aims the establishment of a permanent distribution mechanism of asylum seekers within the European Union. The European Commission itself also acknowledged the relationship between the two concepts when explaining the measures: „Depending on the results of the discussions on this proposal the commission could consider withdrawing the September proposal” about the permanent (open-ended) distribution of asylum seekers within the Union. In another proposal in May, the Commission came up with something new in comparison with its former proposal. It left an „escape route” for member states not wanting to participate in the fairness mechanism, but attached a disproportionate –at least in the eye of several member states, including Hungary – financial burden to withdrawing member states (the payment of 250 Euros after each asylum seeker not taken), which can be considered an exceptionally high „penalty fee” for smaller countries, compared to other EU assistance administered in proportion to population size. This element is the prime reason behind the fact that the member states are not likely to accept the Dublin reform part of the proposal package. (This proposal does not affect the current relocation scheme, so member state relocations from Italy and Greece, the two Mediterranean countries with the greatest migratory pressure, can continue until September 2017.)

Similarly, the misunderstanding of roles and the demand for more power is seen in another part of the May proposal package, which aims to turn the European Asylum Support Office into a United Nations Refugee Agency. Aside from the old task of supporting the common European asylum system, the Agency would have the prime responsibility of maintaining the reference key necessary for the fairness mechanism according to the new Dublin system, and monitoring the situation in member states to see when the mechanism needs to be activated, and asylum seekers directed to another member state. Of course, this can be realized only with the support of member states, as they should provide the data, and can remain the key factors. The Agency – with added budgetary resources – would also greatly extend its pool of experts[8] in order to assist member states under an enhanced migratory pressure with the screening, registration, and informing citizens of third countries of their relocation possibilities through so-called asylum support teams or operational programs. When specifically asked by the member states, it could also assist in making asylum decisions.[9] It is a novelty, and a clear demand for more power, unacceptable for several member states, that the Agency could intervene not only when asked by the member country in difficulty, but – in exceptional cases – also by its own initiative. According to the proposition’s Articles 15 and 22,[10] the Agency may resort to urgent intervention if there is disproportionate pressure on the asylum and reception systems of a member state, putting in jeopardy the common European asylum system, and 1) the member state does not take sufficient action to handle the situation; 2) does not ask for or does not accept assistance from the Agency; and 3) does not comply with the European Commission’s recommendations, issued for not implementing an action plan the Commission established upon an on-site visit. The Commission in such cases can adopt an implementing act (decision), to enforce the member state’s cooperation, and come to an agreement with the Agency’s executive within three days from receiving the decision, with regards to the action plan – in some cases allowing for the intervention of the Agency. The relevant articles of the regulation proposal prescribe only obligatory cooperation, but the lack of it may result in several sanctions for the member state, as indicated in the Treaties. The Commission should provide continuous information for the Council and the Parliament about the progress of consultations, so it is possible that sanctions will not exceed the level of other, political types of consequences. In extreme cases, however, it is possible that the Commission starts an infringement procedure against the member state for not fulfilling an obligation from the Treaties, which can eventually lead to the imposition of a fine, a lump sum or periodic penalty payments, as determined by the Court of Justice of the European Union – taking into account the measure proposed by the Commission.[11]

The second amendment package that came out in July of 2016, aims for a full harmonization of European asylum procedures, the unification of governing standards for reception conditions, and the full harmony of conditions for granting protection, by the re-regulation of present directives as policy-level rules, mandatory for all member states. One change in procedural law would be a standard European list of[12] so-called safe third countries, which – upon the regulation’s entry into force – would not allow the member states to determine if an applicant should be sent back to a third country they considered safe on the basis of their own national list, which is the current practice. This regulation would thus overrule the member states’ monopoly granted to each country to determine the safety of another country, based on its own political opinion and safety aspects, and it is not yet clear whether a list put together by the EU would make the list of possible countries more extensive or less extensive.


The proposed regulation about conditions for granting protection, and the related rights and duties of applicants makes it not only possible but mandatory for the acting asylum authorities to take the standard country information and analyses produced by the above-mentioned EU Asylum Agency into consideration. It is worthy of note that while there are present efforts in the European Union to converge country information practices, it is now entirely up to the member state authorities – including first instance and second instance courts and legal forums – to decide what they consider authentic to support their position in a case (this is the freedom of proof principle). The question arises: to what extent would the obligatory use of country information produced by the Asylum Agency determine the case-law, for the orientation of an information source so closely affecting the actual decision making is to a certain extent an indirect intrusion into the process of decision making, which can hurt the legal principle of an influence-free decision making after a while.

Although it is not a direct example of the Commission’s power usurping aspirations, one element of the proposed regulation aiming for the full harmony of conditions for granting protection disregards the diverse immigration policy traditions of the member states, clearly downplays the interests of the free movement of workers, and it is disturbing with regards to the secondary migration of asylum seekers. To speed up the employment and the social integration of asylum seekers, the proposal suggests to lower the waiting period for accessing the job market of applicants from nine to six months from the time of submitting the application. This element of the proposal could be divisive in the community of member states, even though this would apply only to asylum seekers with a good chance for gaining international protection. Thus, people with unfounded applications, clearly based on false facts, or posing a public safety hazard would not have this opportunity. According to the Hungarian regulation presently in force, the asylum seeker can be employed at the reception centre or at a workplace designated by the public employer during the first nine months from submitting the application for recognition, and according to general regulations pertaining to foreigners afterwards.[13] Under the Commission’s proposal, obligatory for the member states, there would be an earlier possibility for asylum seekers with a good chance for gaining protection to have basically the same conditions for employment access as Hungarian citizens and employees of third countries (foreigners), even though several practical barriers exist in Hungary (for example, qualification recognition, and access to social security number). The proposal would also prescribe successful access to the labour market, and the member state would be obliged to remove these obstacles and difficulties. This does not match the interest of some member states – for example, that of Eastern and Central European countries, including Hungary. One reason is that these countries have not been recipients in recent historical times, and lack immigrational traditions. Another reason is that members of the target group do not speak the language of the recipient country, and do not have the qualifications the labour markets call for, while possibly hindering the Union employees’ right of free access to any paid employment, especially in low skill jobs. A third reason is that the regulation in question is not likely to have a beneficial effect on secondary migration movements, since the uniform reduction of waiting time in the member states would keep the Western European labour markets more appealing for the applicants.

Finally, the Commission’s proposal on a unified relocation system within the Union[14] is worthy of note. The July proposal had a clear message: legal channels of entry should be favoured for people needing international protection, instead of an indirect support of life-threatening, illegal channels of entry and the business models of people smugglers. The Commission wants to reach this goal by the standardisation of eligibility criteria, of relocation process types and of their technical realization. But the proposal’s internal controversies may leave law enforcement levels uncertain about whether member state participation in the yearly relocation program of the Union will be voluntary or compulsory.[15] The latter may invoke earnest resistance in the member states, since the Union – just like in cases mentioned above – wants to decide in an issue not in its competence, and this issue has a substantial impact on the nation states and on the lives of their citizens.

In sum, the European Commission’s proposals in the first half of 2016, aiming for an early realization of a common European Asylum system is full of problematic elements, and this can undermine the unity of member states. The second half of 2016 aims to make cultural, security, and – most of all – sovereignty decisions in this argument, and will have an essential impact on how the migration crisis will be treated.

[1] See Article 78 of The Treaty on the Functioning of the European Union.

[2] In Article 5, point 3 of The Treaty on the Functioning of the European Union: „Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.”

[3] See Towards a sustainable and fair Common European Asylum System. European Commission – Press release. Brussels, 4 May 2016. Access: http://europa.eu/rapid/press-release_IP-16-1620_en.htm (Downloaded: September 5, 2016.)

[4] Their short names are: the so-called Procedures Directive, the so-called Qualification Directive, and the so-called Reception Directive.

[5] See Article 78, paragraphs 1–3 of The Treaty on the Functioning of the European Union.

[6] See Resolution of the Representatives of the Governments of the Member States meeting within the Council on relocating from Greece and Italy 40 000 persons in clear need of international protection. Brussels. 22 July 2015. Access: http://data.consilium.europa.eu/doc/document/ST-11131-2015-INIT/en/pdf (Downloaded: September 9, 2016.)

[7] See Note on the reforms of the Dublin Regulation, the Eurodac proposal and the proposal for an EU Asylum Agency. Meijers Committee. CM1609. Access: http://www.commissie-meijers.nl/sites/all/files/cm1609_note.pdf (Downloaded: September 5, 2016.)

[8] The goal is to have about 500 own experts on the staff, to be mobilised when needed by 2020.

[9] See Proposal for a Regulation of the European Parliament and of the Council on the European Union Agency for Asylum and repealing Regulation (EU) No 439/2010. Brussels, 4.5.2016. COM (2016) 271, 10.

[10] Ibid.

[11] See Article 260 of The Treaty on the Functioning of the European Union.

[12] Safe third country: a country, about which the Asylum Authority is certain that the applicant is not in danger of persecution or serious harm for reasons set down in the 1951 Geneva Convention; where the principle of non-refoulment is kept; and where the application for international protection can be filed, and the procedure can be accessed. For asylum right details, see 2.§ i of the Hungarian LXXX law of 2007 (Met – the Hungarian Asylum Law)

[13] See Met. – the Hungarian Asylum Law 5.§ c)

[14] See Proposal for a Regulation of the European Parliament and of the Council establishing a Union Resettlement Framework and amending Regulation (EU) No 516/2014 of the European Parliament and the Council. Brussels. 13.7.2016. COM (2016) 468 (final). Access: http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/proposal-implementation-package/docs/20160713/resettlement_system_en.pdf (Downloaded: July 30, 2016.)

[15] The explanation on page 14 of the Proposal [first paragraph of point b) refers to obligating the member states (…plan for the following year which determines the maximum total number of persons to be resettled and the number of persons each Member States is to resettle within this total.), while point b) in the second paragraph or article 7, and point b) in the second paragraph of article 8 talks of „contributions” and „details about the participation of the Member States” only.