EU Asylum law

• situation in each of the countries must be examined (as these persons can avail themselves of the protection of another country)

•  D – Persons already receiving UN protection or assistance (examples: UNKRAKorea, UNWRAPalestine)

•  E – Persons who are not in need of international protection (person has taken residence in the country and enjoys same rights as nationals)

•  F – Persons that are considered not to be deserving of international protection (unworthy persons)

Crimes against peace, war crime or crimes against humanity (international instruments, e.g. Rome Statute of the International Criminal Court)

Common crimesprotection of the population of the host country

Acts contrary to the purposes and principles of the United Nations (Preamble, art. 1, 2 United Nations Charter – position of power of the person?)

•  Changes in the situation that have been brought about by the refugee himself (clauses 1-4)

1. Voluntary re-availment of national protection

2. Voluntary re-acquisition of nationality

3. Acquisition of a new nationality

4. Voluntary re-establishment in the country where persecution was

   feared

• Changes in the country where the persecution was feared (clauses 5- 6)

• Reasons for becoming a refugee have ceased to exist (Transitory changes not sufficient)

Non- refoulement (CG) (weak, art. 33 abs. 2 GC)

Non - refoulement (Human Rights)

Explicit  non- refoulement

non- Implicit refoulement

no they always have to be applied in connection to something else. For. ex. art. 3 ECHR

Yes, a small child has no where to go, so its not necessary to detain it. 

With a older child maybe not

Yes but only if the deases is already far advanced. 

Conditions have to be very severe. Not enough if you are just treated like everybody else in that country.

also when applying dublin, the non refoulement principles have to be checked. 

Parallel case decided by the European court of justice. They also said greece is not safe and this presomption of safty must be possible to prove the opposit.

Also important if the procedures do not work for big familiy for example. (Italy case)

No procedure so violation of  Art. 13 ECHR. but can only be applied with another art.

They were not facing inhuman treatment in the countries of origin and also not in marcco. So a risk of art. 3 can be excluded. 

Art. 4 prot. 4 ? The idea of having a collective procedure is prohibited. 

Court said art. 4 prot. 4 not appicable, because they did not use the legal options. You can not benefit from art. 4 prot. 4 if you behave illegaly (large groups cross boarder at night).

Only applicable if oyu have used all the legal options. you can not benefit fro ARt. 4 prot. 4 if you behave illegaly. for example in large groups during the night.

Very problematic!

Legal behaviour was never a condition!

First step was mastrich in 1992, where cooperation in the asyulm segment was put in the third pillar. So "only" public international law. Decisions have to be unanimous. 

Reception coditions, difficult because standards in the EU-contries are so different and the reception conditions cant be better than the conditions in some of the poor countries. 

Biggest problems are the asylum procedures, because they are very different

Kind of, defently for kids. 

For others depends, where they arrive and so on. 

• Establishment of a mechanism for determining the member state responsible for examining an application for international protection

•  “One chance only”

•  No “asylum shopping”

•  No “refugees in orbit

• All member states are considered to be safe (rebuttable presumption),

  (relative) equivalence of national asylum systems( Became rebuttalbe after the greece cases)

The member state responsible for the physical presence of a person on the territory of the EU is responsible for his / her asylum procedure

 Exceptions for minors and family members (fundamental rights)

the take charge procedure applies)

or take back procedure (if you already have a running asylum procedure, you have a number an so on)ere you dont have to examin the criteria, because the other country probably already does. Unless the person invoques human rights, like saying my husband is in another country. minors and family

• Third-country national or stateless person applying for international protection (refugee status or subsidiary protection status according to the Qualification Directive)

•  EU citizens are not “dublinized”

•  Persons who already obtained a status (refugee status or subsidiary

  protection) are outside the scope (CJEU, Ahmed)

• Minors (art. 8)  See CJEU, MA, BT, DA

•  Family members (art. 9, 10, 11)

•  Residence documents or visas (art. 12)  See CJEU, Jafari

•  Illegal entry (art. 13 (1))irregularly crossing of an external border,

  i.e. person coming from a third countrySee CJEU, A.S., Jafari

•  Illegal stay (art. 13 (2))

•  Visa waived entry (art. 14)

•  “Entry” in transit area of an airport (art. 15)

Only one part of our vorläufige Aufnahme is international protections. Like the art. 3 EMRK cases. They have to check what kind of admission provisoire is it? 

In Switzerland we have more than international protection, like keeping people for humanitarian reasons. Women with retarded child or something like that.

fake passport but real visa art. 12 applies. 

Fake visa, art. 12 does not apply, 

• If no responsible member state can be designated: first member state in which the application was lodged (art. 3 para. 2)

yes. art. 27 

Safe third country (art. 3 par. 3)See CJEU, Mirza

  Best interests of the child (art. 6)
 Dependent person (art. 16)  See CJEU, K.
 Discretionary clauses (art. 17)

•  Art. 13 para. 1: 12 months after the date on which the irregular border crossing took place

•  Art. 19 para. 1: residence document

•  Art. 19 para. 2: person has left the territory of the MS for at least 3

  months (CJEU, Karim)

•  Art. 19 para. 3: person was removed / returned

 Request: 3 months (Eurodac hit: 2 months), art. 21 para. 1 

 Reply: 2 months, art. 22 para. 1
 Transfer: 6 months, art. 29 para. 1

 Request: 2 months, art. 23 para. 2, art. 24 para. 2
 Reply: 1 month (Eurodac hit: 2 weeks) art. 25 para. 1 

 Transfer: 6 months, art. 29 para. 1

• (Collective) obstacles to a transfer: substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in the responsible member state, resulting in a risk of inhuman or degrading treatment

• Individual obstacles to transfer also have to be examined, for example medical reasons (CJEU, C.K.)

 Art. 4: Right to information
 Art. 5: Personal interview
 Art. 6: Guarantees for minors
 Art. 26: Notification of a transfer decision 

 Art. 27: Remedies

The fingerprint system in witch applicants are put into via fingerprint so you can check for other applications for asylum

•  Category I: Applicants for international protection (art. 9), data stored for 10 years (art. 12)

•  Category II: Third country nationals apprehended when illegally crossing an external border (art. 14), data stored for 18 months (art. 16)

•  Category III: illegally staying third country nationals (art. 17), comparison with cat. I and II, no storage

14, but there are plans to change that

Art. 46 para. 2 says where the 2 statuses are really identical you can consider the appeal unfounded. but there is probably no state where they are really the same. 

main diffrences: 

- lenght of residence permit

- social benefits

- family reunification

no, you get less financial support and you can not move without permission

We are supposed to be in phase 2 but actually we are basically applying the stuff from phase 1, but we are on the way to a 3rd phase where we’ll have regulations and with thta not anymore mimimum garanties.

Regulations dont have to be transposed into domestic law. 

So there will be less diffrences, just because of the person executing the regulations. Can be more strict or less.

qualification directive only for third country nationals, not for EU-People

Exclusion reasons from art. 12 qualification directive go further than the ones in the GC 

in the qualification directive also people who help other people to commit a crime are excluded.

The same thing applies to subsidiairy protection. 

Here the qualification directive created some exceptions to the non-refoulement principle. Also a problem, non-refoulement is  absolut.