Conference Review: ‘The EU Asylum Directives: Is Opting in Necessary?’

December 19, 2011 § Leave a comment

On the 24th November 2011 I attended a conference at the Bingham Centre for the Rule of Law titled ‘The EU Asylum Directives: Is Opting in Necessary?’ The event was created to consider the general implications of the UK’s opt out of the amended EU Asylum directives and the effect this could have on the UK’s position in the Common European Asylum System (CEAS).

There were three speakers at the event; Valsamis Mitsilegas, Director at Criminal Justice Centre, Queen Mary; Elspeth Guild, Professor of law at Queen Mary and David Saville, Head of EU Asylum Policy Team, UK Home Office. Chairing the discussion was The Hon. Mr Justice Blake.

I have outlined the discussions of each of the speakers in my own words below:

First to speak was Valsamis Mitsilegas:

Valsamis outlined his intentions to discuss whether opting in to the amended protocols was necessary, and whether the UK could afford not to participate in the amended directives without being excluded from the CEAS as a whole. I have briefly summarised his considerations below:

Valsmais used the history of the Schengen agreement to form his theory that the UK would not be able to participate in the CEAS if they continue to pick and choose which protocols to implement. The Schengen Agreement aimed to abolish internal EU border controls, allowing for passport free movement of EU nationals. Currently 25 countries are part of the Schengen agreement. However the UK only partially opted in to the measures, approving inter-police co-operation, whilst refusing to adopt the abolition of border checks and the common visa policy in favour of maintaining its own border. Despite being resistant to sacrifice national border controls, the UK was keen to take part in the Visa Information System (VIS) which shares visa data for security purposes between the participating Schengen states, however the other EU states blocked the UK’s attempt to use the VIS which was upheld by the European Court of Justice in UK v EU Council (Case C-482/08). During the case the UK claimed that because it had an opt-in measure and had adopted inter-police co-operation, it was entitled to use the VIS system, despite refusing to abolish border controls.  The Court rejected this argument stating that the VIS measure needed to be looked at objectively, taking into account its context, purpose and effectiveness as a whole, rather than the specific wording of the protocol.

The purpose of the VIS was to support the removal of national border controls whilst maintaining state security, as the UK refused to abolish their own border agency they could not participate in the establishment of the European Border Agency and consequently the VIS measure. The Court held that as well as the strict legal basis of the measure, the logic of the Schengen agreement as a whole must be taken into account and as the UK does not contribute to that purpose it is not allowed access to the VIS.

Valsmais also drew attention to Article 4a of Protocol 21 of the Treaty of the Functioning of the European Union (TFEU), which he believes allows for ejection of the UK from the CEAS if the UK’s refusal to adopt certain measures renders the directives inoperable.

In light of this interpretation, Valsmais asserted that it is unlikely that the UK will be able to participate in the Dublin Regulations if they refuse to adopt the Procedural and Reception protocols.

The objective of the Amsterdam treaty is to achieve a common asylum system between all European Union member states to ensure high quality decision making and treatment of refugee claimants. The four directives; Dublin, Procedures, Qualification and Reception (described in detail in my previous blog post) are all contingent upon one another in achieving the aim of the CEAS and therefore when viewing the directives objectively as a whole, and taking into account the Schengen ruling, the UK should not be able to participate in one of the directives if it refuses to adopt the others.

The second speaker was Elspeth Guild.            

To begin with Elspeth outlined the numbers of people whom the UK decisions would affect, namely asylum seekers, and summarised the numbers of asylum applications that are lodged within the EU.

In 2010 there were half as many asylum applications within the European Union as there were in 2001/2002. The Eurostat figures show that in 2010 the UK received 23,715 applications- lower than France who received 52,725; Germany 48,490; Sweden 31,875 and Belgium 26,130, all of whom are part of the CEAS. To put the UK figure into perspective, in 2010 only 6,500 people were granted asylum and approximately 20,000 claims were rejected.

Elspeth asserted that:

The UK has thus far only opted in to the recasts of the Dublin and Eurodac measures, rejecting the reforms of the Qualification, Reception and Procedures directives. The purpose of the Dublin regulation is to determine the liability of state responsibility towards asylum applicants, placing responsibility on the state first sought by the asylum applicant. The Eurodac measure is a fingerprint database, its sole purpose being to determine whether asylum applicants have been apprehended or sought asylum in another European country.  Eurodac checks are not automatic, they can be performed upon suspicion and if the applicant is found to have been in another country the responsibility will pass to that state.

In practice the UK is a ‘net sender’ of the database, regularly sending applicants finger prints for checking, which more often than not, results in a ‘hit’ allowing the UK to transfer responsibility. Comparatively other EU countries have very few ‘hits’ against the UK. These two measures have been adopted by the UK, allowing the government to offload responsibility on to other member states, which has recently facilitated the return of thousands of asylum applicants to Greece and Italy, which has the worst welfare provision for asylum seekers (See the report by the Guardian for further details). However the measures which actually provide increased protection to applicants, have been rejected by the UK.

In light of these measures it is clear why the system must be seen as a whole. If a state passes responsibility of an applicant to another member state, the state transferring responsibility needs to know that the receiving state will uphold the applicant’s rights and provide treatment and decision making of an equal standard to themselves i.e. a Common European Asylum System. Although positive individual asylum decisions do not have mutual recognition amongst member states, negative decisions do. Consequently the decision making process must be equal between member states to ensure fairness. Therefore the UK should not be able to adopt the Dublin measures (which offload responsibility) without adopting the qualification directive as there needs to be a common system for qualification.

Because the UK has opted out of the recast of the directive, it intends to implement the previous version of the directive, however this still causes the same problem of a differing qualification system between UK and other member states. On this basis it is likely that problems will arise in the courts and doubt is cast on the UK’s ability to participate in the Eurodac and Dublin regulation without accepting the other amended directives.

In consideration of this argument Elspeth therefore emphasised that the more legally preferable, legitimate and administratively practicable option is that the UK accepts the amendments.

The final speaker, in position to defend the Governments decision not to opt in, was David Saville from the Home Office.

David stressed that the government’s main aim in border control is security. The change in government has led to strong views on state sovereignty and the present government does not support the harmonisation of border controls. The UK believes that asylum claims should be decided by member states, which should retain sovereignty in matters of immigration. David asserted that the EU legislation is not effective in practice and means nothing if it is not implemented correctly, which was recently shown by the failings of Greece and Italy to provide a sufficient asylum system. In reality the UK upholds and will continue to uphold the rights of applicants above other countries, (like Greece and Italy who have opted in to the protocols) as the UK’s measures are practical and achievable. Despite rejecting the measures, the UK still provides some of the highest protection in Europe.

In defence of the decision not to opt in to the protocol David reasserted that through Protocol 21 the UK is entitled to opt in or out of any measures which they do not feel appropriate.

In defence of the assertion by Valsamis that the principle of the Schengen ruling could lead to the UK’s exclusion from the CEAS, David stated that the Schengen agreement is a specific and limited part of EU law which is excluded from the directives as it is a separate ring fenced agreement. In drawing attention to Article 4a of Protocol 21 David affirmed that it only allows for ejection from the directives, if the state completely refuses to accept the directive not just the veto of an amendment. Consequently the UK will continue to implement the original directives.

The UK is also not the only country to opt out of the amended protocols as Ireland has also chosen to do so. With reference to the Dublin regulations, David outlined that the regulation has been extended to non-EU countries with no expectation upon them to take part or uphold the other directives. Asylum applicants are protected by fundamental rights which would prevent extradition to countries where their rights would not be upheld and therefore the directives are not essential in supporting applicant’s rights.

My thoughts on the subject…

In conclusion the repeated reason for the government’s veto of the amendments was sovereignty. The arguments put forward by the panel were convincing and unfortunately David Saville and the Home Office appeared to be a victim to the well thought out questions and savvy opinions of the panel and audience. Sovereignty seemed to stand stoutly in the way of protection for asylum seekers, and reasons given by the government such as: the resistance to allow quicker access to the labour market and the desire for fast track detention, have not been supported by evidence to show that these measures are necessary. On the contrary, much evidence provided by NGO groups shows quite the opposite i.e. that the detention estate and restrictions on work are a huge expense to the state and cheaper alternatives could produce the same results.

The assertion of sovereignty does not address why the minimum standards put forward in the amendments could not be adopted by the UK. If the UK provides one of the highest standards of protection to asylum seekers, then why not implement the minimum safe guards to promote equal protection across Europe?  Surely if the UK refuses to uphold the protective measures granted by the amendments, they should be prevented from using the procedural measures to transfer responsibility on to other states.

At a time when the UK government continues to spout human rights rhetoric to North African and Middle Eastern countries, it is a self contradiction to reduce the human rights protection afforded to the most vulnerable group of people on the planet, refugees. 

– Katie Bales

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