The Common European Asylum System and the UK
December 13, 2011 § 1 Comment
At a time of increasing hostility towards immigration and asylum and with a euro-sceptic government at the helm, we examine what the Common European Asylum System is and what it means for the UK.
The CEAS and its purpose:
Introduced in the treaty of Amsterdam (1997), the Common European Asylum System (CEAS) seeks to harmonize the treatment of asylum applicants between European Union member states. It aims to establish a common system that will standardise the protection afforded to asylum applicants through a unified qualification system; high quality criteria for the reception and processing of applicants and definitive responsibility of member states. The European Asylum Support Office will standardise practical considerations such as the Country of Origin Information and will deploy support teams to states in need of asylum support.
The CEAS has so far been implemented in two phases. Phase one took place from 1999 to 2004 and established a number of measures, the four most important ones being: the ‘Dublin’ regulation, the ‘Reception Conditions’ Directive, the ‘Qualification’ Directive and the ‘Procedures’ Directive. A period of reflection and consultation was then given as to the quality of the measures, then in 2008 phase 2 began, aiming to improve and build upon the measures already implemented. Amendments were made to three of the most important directives; the procedural, qualification and reception directives.
The UK took part in all of the original ‘first phase’ measures, however the country has an option to opt in or out of the directives (Protocol 21) and has thus far rejected the revisions, choosing only to fully opt in to the Dublin regulations. The government claim that they will continue to implement the old directives, yet the whole premise of a ‘common’ European asylum system could be undermined if the UK chooses to implement differing standards to other EU states, calling into question the UK’s participation in the system.
The meaning of the Directives:
The ‘Dublin’ Regulation: To determine state responsibility for asylum applicants and prevent ‘asylum shopping’; where applicants travel across different EU states to obtain the most preferential treatment. The responsible state is the state which is most central to the asylum seekers application. It is normally the first state which was entered illegally or legally, where the latest visa was issued or where the applicant’s family are legally resident.
The Qualification Directive: To give a common definition of the meaning of ‘refugee’ across member states and reduce ambiguity regarding the terminology that is currently used in defining refugee status. (Full name: The ‘Directive laying down minimum standards for the qualification and status of non-EU nationals and stateless persons as refugees or as persons who otherwise need international protection)
The Reception Conditions Directive: To ensure a common standard of treatment for applicants across all member states. This includes common:
- Access to information upon arrival
- Time restrictions on access to the labour market
- Access to education
- Access to housing
- Access to medical care
(Full name: The Directive on reception conditions for asylum-seekers)
The Procedures Directive: Provides minimum procedural guarantees across member states, such as access to legal advice and the existence of a personal interview in the application process. It also sets minimum requirements for decision making such as independent, qualified decision makers; conditions for notification of the decision and rights to appeal. It also gives a unified understanding of claims which are ‘manifestly unfounded’ and countries which are regarded as ‘safe countries of origin’.
For further information on the directives, or the system as a whole, see the Europa website on European Commission Home Affairs:
What do the revisions mean for the UK?
Beginning with the…
Reception Conditions Directive: the biggest change (and hence the Government’s refusal to adopt) would be to the detention of asylum seekers.
The UK has one of the largest immigration detention estates in Europe. Approximately 26,000 people were held in immigration detention in 2010, the majority of whom were asylum applicants. Most people are held in detention for over two months, in 2010 the cost for one individual for one night was £120.00, a costly exercise for the government and a further promotion for the prohibition of detention of asylum applicants. (See ‘Bail for Immigration Detainees’ for further details)
In short the new measures (Article 8) included in the amended directive codify the grounds for detention to four circumstances:
- to determine or verify nationality
- to determine the basic protection elements on which the claim is based
- to verify the procedural right to enter the territory and
- on grounds of national security.
These circumstances may only be invoked when necessary and ‘if other less coercive measures cannot be applied’ creating a further requirement of proportionality. It also asserts that applicants will not be detained on the sole basis of an application for asylum being lodged.
This is a problem for the UK government as the majority of applicants held in UK detention are held under ‘fast track’ measures also known as administrative detention, which allows for detention of claimants whose case can be decided quickly, this is normally based on the person’s country of origin. If a claim is ‘fast tracked’ the applicant will be detained whilst they wait for their claim to be determined, if the claim is rejected, fast track applicants have no right of appeal in the UK and will be deported. Applicants from certain countries which are listed by the Home Office as being ‘safe’ will automatically be placed on the fast track system unless they can prove that their claim is obviously not unfounded. However, worryingly the UK Government do not always have the most up to date country of origin information, although Congolese applicants were not fast tracked, the Guardian reports that recent decisions made by the Government to deport applicants back to the Congo were based on dated country information from 2008. The consequences of this are detailed in a report ‘Unsafe Return’ by Justice First: which provides case studies of seventeen adults and nine children, the majority of whom were subjected to inhuman or degrading treatment upon their return to the Congo, including imprisonment, rape, sexual assault, beatings and electric shock treatment.
In conclusion if the government opted in to the amended directive they would not be able to use the fast track system for detention as the border agency would have to prove detention necessary in each individual case and that no alternative methods of control could be used. They would also have to establish that detention was not based upon an application for asylum being lodged. If the directive were implemented the majority of those currently in fast track detention would be released and granted temporary admission.
The amended Reception Directive also requires all detention to be confirmed by a judicial authority within 72 hours from the beginning of detention (Article 9). Currently the decision to detain in the UK is decided by a UKBA officer with the authority of the Secretary of State, consequently if the UK opted in to the directive, the administration for decisions to detain would have to change, which is viewed by the Government as an unnecessary administrative burden on the judiciary. However, as many have pointed out, the criminal justice system bears the administrative weight easily and in comparison the numbers for immigration prove insignificant.
The other change (and one which was cited in the government’s rejection of the amendment) is to the time length restriction placed on asylum seekers to access the labour market. The previous time restriction to work was 12 months, which is what the UK currently has in place. The new amendment creates a maximum of six months restriction. The immigration minister Damien Green stated: ‘Signing up to the Reception Conditions Directive would have forced the UK to allow asylum seekers to work after six months, even if their claims had been refused and they were appealing the decision…This would have sent out the wrong message, encouraging those who do not need our protection to make unfounded asylum claims’ The result? Asylum seekers in the UK will be forced to claim benefits for an extra six months. The government have offered no evidence to show that early access to the labour market encourages ‘unfounded asylum claims’ and this assertion contradicts the government rhetoric that welfare benefits also attracts ‘unfounded asylum claims’. Contrary to popular opinion NGO evidence provides that welfare is rarely a factor in decisions regarding where to lodge an asylum application. Often asylum seekers pay an agent to smuggle them out of their country and have no choice in where they will be taken and if they do, the location of family or friends is the paramount concern. For further information see the Still Human Still Here website.
The Procedures Directive: The main change to the Procedures Directive is the right to in-country appeals and further restrictions to the use of accelerated procedures or ‘fast track’ decisions.
As already stated if a fast track applicant has their claim rejected, in current UK law they have no right of appealing the decision whilst remaining in the UK and can consequently be deported. Article 46(5) of the amended procedures directive gives applicants the right to in country appeals which conflicts with current UK practice.
Again relating to the UK ‘fast track’ procedure, any case can be considered suitable. Approximately 70% of UK asylum applications are allocated to the fast track procedure. However the directive specifies seven limited situations in which fast track or accelerated procedures can be used, which would greatly reduce the UK’s use of fast track decision making and create further administrative burden. Yet when one considers the extortionate costs involved in detaining asylum applicants, it is unlikely that greater administration would necessarily equate with greater cost.
For further information about how the UK’s refusal to accept the amended directives will affect its place in the Common European Asylum System, see my forthcoming blog post titled ‘Conference Review: The EU Asylum Directives: Is Opting in Necessary?’
– Katie Bales