An open and safe Europe - what next?
ECRE Submission to the European Commission Consultation on the future of home affairs policies
January 2014

Introduction

The European Council on Refugees and Exiles (ECRE) is an alliance of 81 non-governmental organisations in 37 European countries, protecting and advancing the rights of refugees, asylum seekers and displaced persons. ECRE promotes the establishment of fair and humane European asylum policies and practices in accordance with international human rights law. ECRE’s work is based on the input from its member organisations that are engaged in a variety of activities ranging from the provision of direct specialist assistance to asylum seekers and refugees in and outside Europe to monitoring, advocacy and public campaigning.

ECRE welcomes this opportunity to contribute to the debate launched by the European Commission on the future of EU home affairs policies and to submit its views on the challenges and priorities to be addressed by the EU in the area of asylum and migration, as the Stockholm Programme is coming to its final stages. The inclusion of the views of nongovernmental organisations (NGOs) in this debate is an essential part of developing policies that are evidence-based. Throughout and beyond the EU NGOs play a crucial role as direct service providers to those seeking protection and by doing so are well-placed to identify shortcomings and protection gaps as well as good practices. Moreover, the work of NGOs is supported by the relentless commitment of thousands of volunteers whose daily engagement with asylum seekers and refugees shows that respect for human rights of the most vulnerable is and remains of paramount importance for many EU citizens.

This contribution is addressed to both the upcoming Commission communication on the New Agenda for Home Affairs and the Strategic Guidelines for the legislative and operational planning within the area of freedom, security and justice which the European Council is due to define in June 2014. This submission is made bearing in mind the growing consensus on a proposed approach by some Member States and EU institutions of formulating broad strategic directions on a long term basis rather than a new detailed programme. Preparatory discussions within the Council on the strategic guidelines predominantly indicate the need for consolidation of the achievements of the Tampere, The Hague and Stockholm programmes and emphasise on quality, effectiveness and enforcement of EU action.1 At the same time, reinforcing the external dimension of the EU’s migration and asylum policies is invariably stressed as a key priority for the EU in the coming years.

In this contribution, ECRE’s views on the future of the EU’s asylum and migration policies are structured around the following themes: the implementation and monitoring of the Common European Asylum System, access to protection and border management, detention, integration, return and cooperation with third countries in the field of asylum and migration and funding.

1. Making the Common European Asylum System a Reality for Asylum Seekers

After the adoption of the “asylum package” between 2010 and 2013, the EU is often said to be in an “implementing mode” with little or no need for additional legislative activity at EU level. ECRE shares the view that, after the adoption of the asylum package, the key priority for the EU in the coming years should lie with the transposition and implementation of the asylum acquis at the highest level of protection standards. However, additional steps will be necessary to clarify the adopted standards including through the use of interpretative guidelines. At the same time, upon evaluation, additional legislation to remedy remaining flaws and protection gaps and incorporate important developments in fundamental rights protection through the evolution of jurisprudence may be necessary to achieve the objectives of the EU’s common policy on asylum.

1.1. Ensure Proper Transposition, Implementation and Monitoring of the Asylum Acquis

Member States are under an obligation to ensure that transposition and implementation of the asylum acquis is in accordance with the EU Charter of Fundamental Rights and general principles of EU law as interpreted by the CJEU. Also the jurisprudence of the ECtHR in relation to relevant provisions of the European Convention on Human Rights and Fundamental Freedoms (ECHR) sets important human rights standards that must be observed by EU Member States in their asylum and immigration policies. In ECRE’s view, the inherent complexity and ambiguity of certain provisions in the recast legislation require further guidance from the Commission in order to ensure correct transposition and a sufficient degree of harmonisation in accordance with the 1951 Refugee Convention and other relevant human rights Treaties2 as is stipulated in Article 78 TFEU as well as the EU Charter of Fundamental Rights.

EU institutions should in particular encourage Member States to take the necessary steps to provide for transparent transposition processes that ensure effective consultation with national NGOs and legal practitioners in order to guarantee that their expert views are duly taken into account. Furthermore the necessary resources should be dedicated to information and awareness-raising initiatives targeting asylum seekers and legal practitioners to ensure that asylum seekers are able to assert their rights under EU law and the EU Charter of Fundamental Rights.

Commission interpretative guidelines on specific provisions of the asylum acquis which require further clarification and relevant jurisprudence of the CJEU and the ECtHR could constitute a useful tool to provide further guidance in addition to targeted discussions with EU Member States in contact committee meetings. In ECRE’s view this should be considered for instance with regard to the provisions relating to the detention of asylum seekers in the recast Reception Conditions Directive, the provisions on the assessment of special reception and procedural needs, the provisions relating to subsequent applications and the possibilities to derogate from the right to remain on the territory, the use of accelerated procedures and the guarantees with regard to unaccompanied children, in particular in the context of border and accelerated procedures. As transposition and implementation progresses and jurisprudence evolves, other areas may be identified where further guidance is needed in order to ensure both a sufficient degree of harmonisation and high standards of protection.

Effective and comprehensive monitoring of the performance of national asylum systems is crucial in order to ensure that the objectives of the CEAS are achieved. The Commission, as guardian of the Treaty, must be sufficiently resourced to monitor the correct implementation of the asylum acquis, gather reliable data and launch infringement procedures where necessary. In addition, further legislative amendments, must be considered to address remaining protection gaps and inconsistencies in the EU asylum acquis identified by means of in-depth monitoring.

For the rest of the report click on the PDF below.

ECRE Submission 2014 COM consulation Final2 1.pdf (529.97 KB)