EU Asylum law

For sure in first procedure

but not in the appeal

Art. 46 para. 3 no obligation to hear someone in the second instance, only if you have serious doute, then you have to hear the person again.

no, mesures have to be proportional. With a minor this is defently not the case. 

from moment of application

ARt. 17 para 1 Reception directive

yes, but you need to respect basic minimum, so housing has to be provided always. If you cant provide that, you need to give them money that makes it possible for them to get housing and not seperate their faimily. There is no excuse if the centres are full.

art. 46 procedures directive

its possible to make fasttrack procedures for some countries,

its not a discrimination, because your nationality is the improtant criteria in the asylum procedure so you can make a diffrence based on that.

Definition of standards for the reception of applicants for international protection

Establish common procedures for granting and withdrawing international protection

at the latest access at the labour market after 9 month. 

Does not mean that you find a job.

Art. 15 reception conditions directive

Art 20 reception conditions directive

• sanctions must respect human dignity; a – even temporary – withdrawal of the full set of material reception conditions or of material reception conditions relating to housing, food or clothing would be irreconcilable with Article 20(5) of the Directive

To many reasons for detention, but till now the european court of justice says its ok with the charata of fundamental rights

to many reasons for detention

still no common standards in the member states, especially problem with the very diffrent standards in the memberstates also for the non refugees

1. Syria

2. Venezuela

3. Afghanistan

4. South Sudan

5. Myanmar

no, you have to give refugee status (GC) but not necessairily asyl

Asylum = positive act to grant protection (and a special status) to a foreign person, generally (but not necessarily) on the basis of his or her qualification as a refugee;

A person may lose his or her asylum, but still be a refugee / a state may grant asylum to someone who is not a refugee

GC-Refugees based on persecution

Not refugees according to GC

•  Climate refugees

   

• War refugees (not individually persecuted)

•  Hunger refugees

•  Economic refugees (not forced to leave, they wanted to)

•  Internal refugees (internally displaced persons)

Protection according to the Geneva Convention

 Persecution

Subsidiary / complementary protection

 Based on Human Rights
 Directive 2011/95/EU (Qualification directive) 

 No persecution needed

Temporary protection

 In case of a massive influx, “prima facie” refugees 

S-Status

 nothing, only declaratory effect

A person does not become a refugee because of recognition, but is recognized because her or she is a refugee

 Elements of the definition (article 1, A (2))

1. Person outside of the country of origin (foreigner)

2. Act of persecution (serious harm)

3. Well-founded fear (real risk)

4. Reason for persecution (list of 5 criteria)

5. Causal link (not in GC)

6. Absence of protection by country of origin

≠ nationality in the legal sense / citizenship 
 Link with a certain state
 Membership of an ethnic or linguistic groups

•  Holding political opinions different from those of the government is not in itself a ground for claiming refugee status

•  Applicant must hold opinions not tolerated by authorities, opinions have come to the notice of the authorities

•  Causal link between opinions expressed and measures suffered

•  « unable » = circumstances beyond the will of the person concerned

• Examples: civil war

•  «unwilling»: refusal to accept the protection of the government of the country (willingness would already incompatible with fear)

UNKRAKorea, UNWRAPalestine)

GC, only refugees, exception in art. 33 GC, only contracting parties

Human rights based, every human, no exceptions, contracting parties

Explicit

art. 3 CAT

Art. 19 para. 2 FRC (EU)

Implicit

Art. 3 ECHR

A breach of any human right can potentially engage a non-refoulement obligation (however, in a majority of cases, the situation would probably already be encompassed by “inhuman or degrading treatment”)

Weighting of interests necessary when returning someone to other forms of risks, e.g. 

right to fair trial etc. 

 Access to an asylum procedure
 Right to be informed about the intention to return
 Right to an effective remedy before an independent court/body 

 Suspension of the transfer ( irreversible harm!)

• No obligation resulting directly from human rights

•  EU: Creation of «subsidiary protection», legal status comparable to refugee status

•  Switzerland: F permit is not a “real” residence permit, but just stating that return is (currently) impossible, illegal or unreasonable

yes, cant expedit the person

Deathpenalty is always seen as inhuman

there have to be very serious health reasons, nearly danger of death. 

usually not because person is just threated like everybody else

common european asylum system

• 1999: European Council of Tampere

•   Creation of a CEAS in two phases (phase 1: minimum standardsphase 2: common standards)

• Phase 2 realized till stockholm, basically the same as phase 1 with minor changes

• post stockholm, maybe phase 3 transform directives into regulations, that are legally binding

basically EU bribed Erdogan to keep the refugees in turkey, 

Sending people back to turkey from greece. Ok with non-refoulement?

Do we know everything will be ok in turkey and they get asylum? geographic restrictions to Europe

Also the deal did not go through european parlament, but was done on a informal level. 

• «Pre-entry screening» at the border (5 days) + accelerated procedures for persons with little chances of getting protection (max. 12 weeks)

•  (Futur) Procedures regulation: Asylum and return procedures at the borders

• «solidarity mechanism»Choice between relocation or «return sponsorship»

• Enlargement of the Eurodac database

•  Access to the long term resident status after 3 years (now 5)

hard to put them under one of the existing instruments

Remaining problems

 Causal link between event and state action
 Often, not only one State is responsible (global warming, earthquakes, etc.)
 Limited financial resources

Solutions?

take them in the GC or new mulitlateral treaty