How To Reform The Common European Asylum System: A View From East-Central Europe

Visegrad countries are seen as unconstructive when it comes to refugee and asylum policy, being the most vocal opponents of the EU’s mandatory relocation scheme. Their principled stance towards mandatory relocation has several more or less legitimate reasons. These could be either opposition to any quota system in general or an unwillingness to host people from different cultures and with different religions but also more objective ones such as poorer integration prospects for newcomers given an inadequate infrastructure or the preferences of refugees themselves.

Moreover, existing procedures, whether Dublin transfers or mandatory relocation schemes, have proved to be either notoriously dysfunctional or politically unacceptable and thus largely disrespected.

In this situation, the need to reform the common European asylum system is pressing. There are proposals on the table being prepared by the Commission and Slovakia has announced that it will present its own proposal on flexible or – as the Slovaks wish to call it – effective solidarity in December.

As refugee law practitioners in Czechia and Slovakia, we would like to offer our view on what would be both necessary and beneficial to all in order to achieve a real common system respecting human rights, solidarity and fairness. The core of our appeal rests on an internal reform of the EU’s existing asylum policy toolbox. What we propose is a compromise solution, which accepts some reservations among and challenges from all involved parties – EU, EU member states (MS) and refugees. This should embrace the creation of a real Common European Asylum System (CEAS), effective protection of the EU external border, respecting the right to asylum and the non-refoulement principle, as well as the introduction of a common European resettlement scheme in which the all EU countries would take an active part.

Internal aspect

To start with, we acknowledge that migration and asylum policies differ substantially between MS and they and their societies have varied states of preparedness when it comes to admitting refugees. Retaining 28 different national systems operating in the EU is, either way, ineffective and costly. In effect, these systems end up being a “race to the bottom,” each country enacting stricter regulations in order to ensure that the burden for refugee care falls on neighbouring states rather than their own.

It must also be acknowledged that refugees themselves simply find some countries more attractive than others. In our opinion, a functioning asylum system must address the legitimate interests of all, states and their populaces as well as refugees. This is the only way to create a user-friendly asylum system.

A major obstacle to establishing a common system functioning as a single EU protective space is the (self)-perception of transit countries. This means that our countries tend to regard themselves as mere transit countries and argue that “refugees do not want to come/stay here”. Indeed, there is some truth to this statement as, statistically, a majority of asylum applications lodged here end up being terminated because of absconding. However, insisting on being a transit country acts as a self-fulfilling prophecy. If countries regard themselves as transit they feel no need to build the infrastructure for meaningful inclusion of refugees. Consequently, refugees would not consider these countries as their eventual destination. Naturally, destination countries being forced to receive large numbers of refugees would contribute to this vicious circle by referring to these countries as transit, spreading the message forward to refugee and migrant communities present on their territories who in turn forward it back to newly arriving refugees.

In our opinion, the division into transit and destination countries undermines the very basis of a common EU asylum system, which aims to harmonize conditions and create a single protection space. In a common system, each MS is a destination country for its share of refugees and must act accordingly. We recognize that this requires a major shift in the mindsets and policies of all EU members, their societies as well as refugees. Such a change would not happen overnight, but is fundamental to creating that single protective space and preventing secondary movements of asylum seekers and refugees in the EU. Secondary movement is when asylum seekers and refugees move from one MS to another. In the case of asylum seekers such a movement is not in line with the principle of responsibility for asylum application, which is attributed to the first country of entry into the EU. Recognized refugees do not have the right to freely reside and work in other MS; they would require permission to do so as asylum entitles them to a residence permit and other rights in the country which granted the asylum.

Inevitably, a common system requires the establishment of an EU asylum agency that would carry out a fast and simple standardized asylum procedure based on a single set of rules. That agency would have its decision-making teams, which could be placed at the Union’s external border, in European cities with large international airports, and in countries with extraordinarily high numbers of incoming refugees.

The system should ensure a single set of rights for both asylum-seekers and those already granted refugee status or subsidiary protection in order to achieve similar conditions everywhere. A single set of rights would help to prevent the causes of secondary movements such as length and quality of asylum procedure, reception standards, recognition rates, different recognition for different groups of refugees in different states and varying lengths and types of protection granted as well as rights attached.

A single set of rights means that, for example, in each MS the required length of an asylum seeker’s residence in order to enter labor market would be the same. This would help to improve conditions in less attractive countries to match those elsewhere and would send a strong message to refugees and communities on options for settlement. In this respect, we support the European Commission proposal to introduce asylum regulations instead of directives, which would mean the creation of system of common standards instead of current minimum standards.

Creating an EU Asylum Agency is necessary to maintain the common standardized procedure. The fact that each MS has its own decision-making office results in different outcomes and different recognitions around the EU, further prompting secondary movements of asylum seekers. EU asylum procedure is one of the most complicated in the world and hard to navigate for any non-lawyer. We propose a reform that would lead to simple, fast and predictable procedures with similar outcomes in different MS. Again, this would act as another piece in the puzzle to motivate asylum-seekers to stay in their first country of entry since moving would bring no gain.

Furthermore, we propose maintaining the asylum-seekers’ obligation to stay in their EU entry country prior to any decision on their asylum status – with the exceptions for family reunification and children. Obliging asylum seekers to wait in the first country of entry seems to be the most cost-effective solution.

In the case of the mass arrival of asylum-seekers in one MS, all the rest must provide robust resources to that country and help the EU Asylum Agency to process applications swiftly. As a mandatory relocation scheme seems to be politically unachievable at the moment, we propose a reversion to a voluntary admission scheme. This means that MS would be encouraged to admit asylum-seekers into their national systems to proceed their asylum claims. Otherwise, they would have to contribute fairly to the common system by other means.

In our proposal, we emphasize the need to balance the legitimate interests of both MS and refugees to increase observance by all. The system we propose recognizes that refugees have different motivations and different ties to different countries and that the current preparedness and attractiveness of countries vary significantly. The interest of refugees of settling in “un-known” countries has to be built-up as well as their trust that the system – if properly observed – will provide them with quick and effective solutions. Therefore, as we have seen, the common EU asylum system we propose requires refugees to stay in the first EU country of entry until any asylum decision is taken. In return, we propose legalization of the mobility of recognized refugees and subsidiary protection holders by the introduction of a new EU-wide residence permit for recognized refugees and subsidiary protection holders. This would enable refugees to legally, freely and safely choose their places of residence within the EU. This would include the obligation to register their place of residence with the relevant national authorities.

Granting an EU-wide permit could be conditional upon completing an integration program in the country which processed the asylum application and granted protection. Or, the obligation to complete the integration program could be applied when a refugee registers in another MS. In case MSs fear the abuse of social benefits systems if mobility of refugees is allowed, they can develop a system regulating or limiting access to social benefits if the right to free movement is exercised by holders of international protection.

For countries that would take on higher numbers of registered refugees an EU-wide financial compensation mechanism would be established. We believe that such liberalization would provide refugees with the motivation to wait in the country of initial entry. When granted protection status, they would be able to enjoy mobility and find the best place for them to live, study or work legally. Eventually, some of them would realize that even non-traditional hosting countries would provide safe and dignified conditions for their settlement. For the “front-line” and “transit” states this solution would weaken their motivation to discourage refugees from entering and settling within their jurisdictions as they would be primarily responsible for the processing of asylum applications and it would give their societies a possibility to adapt to refugees’ increased presence over time, adjusting their integration policies accordingly.

Resettlement scheme

Another goal of this proposal is to re-establish control over migration arrivals into the EU. This means, above all, replacing irregular arrival of refugees with accessible, legal and secure avenues to the EU, and also significant support to countries that host the largest refugee populations on their territories (Turkey, Jordan etc.).

If the EU wants to avoid a repeat of 2015, it has to change the external dimension of asylum protection. Refugees and migrants would continue to arrive at EU borders, but we can change the prevailing nature of arrivals from irregular to regular ones.

Currently, CEAS is triggered when a person arrives at the EU border and applies for asylum. With regard to means of arrival the EU and MS have made it almost impossible for refugees to obtain any visa to enter the EU via regular procedures and claim asylum after arrival. Moreover, resettlement offers have been under the discretion of each MS, low in numbers and made without any coordinated policy. Effectively, this has opened a huge demand for services of smugglers and traffickers.

Control of the external borders would achieve as much as fighting the crime of smuggling or catching and prosecuting perpetrators. It would not solve the root cause, which is a demand for the services of smugglers in a situation where –according to UNHCR – around 10% of refugees need resettlement worldwide as it is not safe for them to stay in the first country of asylum and countries annually resettle as few as 1% of refugees worldwide. Preventing people from turning to smugglers means that the number of resettled refugees worldwide must increase significantly. This applies to the EU as well, if it wants to solve effectively the situation of refugees in need of resettlement in its neighborhood.

Therefore, we propose a European resettlement scheme, with all MS participating. Annually, an EU Council decision shall be taken to determine the precise number of resettled refugees, regions and allocation for each MS. For some MS it could be more suitable to provide other options for legal arrivals of refugees such as special study schemes and special work, scholarship or training schemes. Such schemes would be considered as a solidarity mechanism. A good example is the current Slovak pilot scholarship scheme for Syrian refugee students to study at university. These additional schemes would enable refugees to access them even if they are living in the country of their first asylum. For visa purposes, the EU would facilitate a system of joint EU places (perhaps embassies/consulates) to submit visa applications or partner with UNHCR or NGOs to identify applicants and enable them to access the system. Offering resettlement places and other means of legal arrival to refugees from all MS is another example of how to transform the EU into a single protection space, making all MS receiving countries and refugees accept settlement in new countries.

A credible return policy providing visible results in terms of the swift removal of those who are in no need of protection and whose rights would not be violated upon their return to their country of origin would complement asylum policy as such.

We recognize that such proposed changes may be rather challenging to achieve in the current atmosphere. However, a common asylum system is the only solution for the EU as national measures – whether fences, other forms of deterrence, or violations of the core principles of refugee law – serve only to boost populists. What we need now is to work in a true spirit of international co-operation, reinforce trust in the common system and provide refugees with the protection to which they are entitled.

Further reading on this proposal can be found here and here

This column is part of a project Social Europe runs with the Friedrich-Ebert-Stiftung offices in the Czech Republic and Slovakia.