The Common European Asylum System – Where did it all go wrong?

Chapter in 'The European Union as an Area of Freedom, Security and Justice' (editors, Maria Fletcher, Ester Herlin-Karnell, Claudio Matera). The Common European Asylum System (‘CEAS’) is neither common nor a system. This chapter outlines the content of the legal measures that fall under the CEAS, and the fissures that these measures create in the Area of Freedom, Security and Justice (‘AFSJ’), and indeed in relations between the EU Member States. In Part I, we begin by sketching the legal contents of the CEAS, providing a chronological account of their development. While many important questions concerning process, status and rights both during and after recognition or rejection as a refugee have been harmonised, as asylum processes remain national, many divergences in outcomes and treatment of refugees persist. In Part II, we identify the main structural shortcomings, namely (1) the lack of legal access routes to the EU to claim asylum, (2) tensions between legal duties at borders (such as non-refoulement, the prohibition on collective expulsion and other human rights obligations) and political framings of the nature of ‘effective border controls’ and (3) the pathologies of the Dublin System. This part explains how the fissures in the CEAS became fractures and schisms in 2015, when the EU was faced with large numbers of protection seekers, predominantly arriving irregularly in Greece. The CEAS, as currently designed, makes responsibility-sharing less likely, exacerbating the crisis for those seeking protection. Part III examines the legal responses adopted thus far to deal with the crisis. These include (1) a range of unilateral measures, some legal, some blatantly illegal under EU and international law, and (2) various attempts to respond to the crisis at the EU level on an ad hoc basis, including EU relocation, resettlement and the EU-Turkey ‘deal’; and (3) in May 2016, a package of proposals for harmonisation and centralisation of the CEAS. Our concluding observation is that as yet the EU has not addressed the structural problems identified in Part II.