International law requires countries to assist those who have entered their territory fleeing a serious risk of persecution or violence. The Dublin Regulation of 2013 and its later development establish the procedures through which European Union member states must implement the territoriality principle of the right to asylum within the area of free movement that is the European Union. The regulation dictates that only one EU state can examine a particular asylum application. Save for special circumstances related to the right to family life and the best interests of the child principle, the country through which the asylum seeker entered the EU – or the country that granted them an entry visa – is obliged to process the application and grant or refuse refugee status or another degree of protection that would take effect in that member state.
This should be carried out through uniform reception procedures, criteria and standards as defined in the three directives that were approved for this purpose. The European Commission provides member states with various technical and financial instruments to improve the national systems of countries with less capacity and so ensure that all EU members can equally comply with their international obligations and guarantee a level of reception consistent with the principles upheld in our fundamental treaties.
This so-called Common Asylum System does not establish a European framework for refugee protection but instead represents an internal agreement concerning which country should examine an asylum application and by what criteria, and how it should ensure protection is offered in its territory when the application is approved. In other words, the European response to the international obligation of protection and asylum is rerouted to the national sphere and limited to a single default country.
The member states themselves have willed it this way. It has become commonplace today to refer to the crisis we’re living in as a European problem rather than a national one. This makes no sense whatsoever,least of all when asserted by national leaders who are joint rulersof the European Union itselfand who have wanted to retain broad powers in this area. The supranational dimension of a problem does not exclude countries and their leaders; on the contrary, it includes them. This is the very nature of the European Union.
Without violating the division of powers, it is possible to go much further in the construction of the common asylum policy provided for in Title V of the Treaty on the Functioning of the European Union, which governs the Area of Freedom, Justice and Security. The current situation is undermining our duty to protect both the victims and the European Union itself, immersed in a debate whose factual elements are far removed from the facts that it seeks to address, debased to mutual reproaches between politicians and broadcast before the eyes of the world. These reproaches too often employ a vocabulary that naturalises ultranationalist speeches and xenophobia. Truly this time, yes: it is move towards more Europe or regressin areas that are core to thesystem, with potentially very serious consequences.
Moving towards more Europe means breaking past taboos and daring to establish a real and commonly governed European asylum system. This system could detach the review process for asylum applications (conducted according to pre-agreed criteria and procedures) from effective access to one or other (sub) system of national protection. Exactly where this right of protection would become effective could be determined later, and the joint responsibility of the different member states should be added to the list of determining criteria. Such a system would not burden border countries which today already have an obligation to intercept irregular arrivals to their territory and process asylum applications. Instead, it could eliminate incentives for non-compliance in countries and encourage newcomers to immediately apply, allowing better management of flows and avoiding secondary movements which engender serious repercussions for both newcomers, particularly the most vulnerable, and for all of us. The means of technical and financial support should be increased and adapted to this common system.
Beyond our borders we must urgently act on two necessary points: to support the reception efforts of countries and communities bordering conflict zones, and establish safe passages to prevent those we would grant refuge from crossing our borders illegally. The border between home affairs and foreign affairs is diluting at a rapid speed. European external action is an essential part of a European asylum policy.
The European Asylum Support Office (EASO), whose mission is to assist member states in the practical implementation of the European asylum system, should ensure that applications are processed according to the criteria and standards outlined, and that subsequent decisions are implemented correctly in the given location. International agencies, the UNHCR and the IOM, should offer their knowledge and capabilities. The IOM should help those who are not eligible for protection in the territory of the European Union and must leave it. Both the IOM and the European agency Frontex should have additional resources. Besides countries and their different levels of government, and European and international agencies, a European response to this critical situation requires a strong involvement at the local level, including outreach to citizens and their organisations. The European Union must be able to support them directly when necessary.
The cornerstone of the current common asylum system, the Dublin Regulation, and with it all the rest, was damaged well before this crisis. Its death certificate was effectively signed when Germany decided to stop submitting the applications of Syrian citizens for examination. This does not mean we should start from scratch in European asylum management. Components such as information sharing, intelligence, and cooperation in certain sectors have improved, and today we have a bigger and better European network we can rely upon. We must change what does not work and use the experience amassed over 25 years to create a genuine European area of protection and refuge with a common governance system that allows us to assume our responsibilities and which strengthens us both internally and in the international arena. Difficult and expensive, yes, but much less so than not doing it at all.
The European Council on Foreign Relations does not take collective positions. ECFR publications only represent the views of their individual authors.