EU Asylum law

• Definition (for the territory of the EU) who is a refugee and who obtains subsidiary protection (based on the non-refoulement principle), creation of a special legal status for persons obtaining protection

•  Harmonisation of material law in order to avoid secondary movements and asylum shopping

Art. 6 qualification directive

protection theory, also non state actors if state and international organisations are not able to protect

Personal scope

ECHR 3, everybody

sub. prot., only non refugees or third country nationals/stateless persons

Risk

sub. Prot., excludes medical cases

Exception

ECHR 3, no exceptions

sub. PRot., cessation, revocation and exclusion

Status

ECHR 3, no direct status

sub. PRot. similar to refugee status

• Autonomous interpretation, independent from International Humanitarian Law

• if a State’s armed forces confront one or more armed groups or if two or more armed groups confront each other

• Exceptional (collective) measure to provide displaced persons from non-EU countries with immediate and temporary protection

• Minimum standards 

• Promoting a balance of efforts between Member States

Proposal by the Commission also what groups to protect

Council decision

not alocating binding numbers, so no burdensharing mechanism

You can apply for asylum at any time. 

crime against peace, or warcrime etc. 

serious non political crime

acts contrary to the purposes and principles of the UN

reasonable grounds for regarding him or her as a danger to the securtiy of the host member state.

may end at any time by council decision. 

max duration total 3 years. 

At first 1 year and automatic extension for another year and

then qualified majority for another year of extension

 Double voluntariness (person and state)
 Each state must indicate its capacity in terms of numbers
 If number of persons entering exceeds capacity, Council shall take

“appropriate action” (not very precise)

• Enforceable rights for the displaced persons?

• Unclear definition of mass influx

• Territorial limitation to Europe (memberstates never wanted to apply it with situations far away, not a real criteria)

• Difficult to get the qualified majority needed for such a situation

• 3 years max

• no real burdensharing

• Is it even racist?

Yes, Guillotine clause

• Adoption of acts / measures by the Council (swiss experts can be there during the discussions, but no vote)
• Notification of Switzerland (without delay)
• Switzerland shall decide whether to accept their contents and to implement them in its internal legal order
• This decision shall be notified to the Commission within thirty days of the adoption of the acts or measures concerned

After that, fulfilment of «constitutional requirements» in 2 years

technically no. 

both can do their interpretation,

switzerland not bound by ECJ

there should be a mixed comittee to discuss specific cases (in reality EU does not do that with switzerland)

1. Switzerland does not accept the contents of an act or measure

2. Switzerland does not carry out notification within the thirty-day time limit

3. Switzerland does not carry out notification after the referendum deadline has expired or, in the case of a referendum, within the two- year time limit or does not provide for provisional implementation

Non-transposition of new instrument (3 situations) = agreement suspended = cessation after 90 days if comittee does not find a solution

Matter has to be put by offical decision on the agenda :

- Dispute about application

- Substantial divergences (courts or authorities) = discussion in agenda, 90 days, extension by another 90 days, and then cessation

•  No direct obligation

•  But: cessation mechanism in cases of substantial divergences

• Until now, BGer follows nearly 100% the ECJ

probably not, but doesnt matter much because there is the EMRK

• make it a regulation

• Harmonisation of the type of protection and the duration of residence permits

• restart Five-year waiting period, if person found in a country where she does not have residence permit

• Clarification of the rights and obligations of persons benefitting from international protection

• make certain types of social assistance conditional?

- make it a regulation

- shorter procedures

- Right to a personal interview and to free legal assistance already during the administrative procedure

- New obligations to cooperate with the authorities (sanctions if not)

- EU-list for safe third countries 

• still a directive

• Application by the Member States of the standards by european asylum support office

• member must draw up plans to assure sufficent reception capacity

• Reception cond. only provided in the memberstate responsible

• access to labour market after 6 month, wont find a job anyway

• Rules on when entitlement to material reception conditions can be scaled back

• possibility for Member States to store and search data belonging to third-country nationals or stateless persons who are not applicants for international protection and found irregularly staying in the EU

• Storage of more personal data

• Transformation of the existing European Asylum Support Office in to a fully-fledged European Union Agency for Asylum with an with more competences

• make everything more even

• strenghten cooperation between the states

now its voluntarily, if you want to help resettle people

with this it would be more binding, but memberstates are not very into that

Resettlement is directly from third countries. 

Relocation would be inside europe

 Solidarity contributions for the benefit of Member States underpressure (Article 45)  choice, no sanctions!

Distribution key only 2 factors, population and GDP. Problem

1. Relocation of applicants (not in border procedures)

2. Return sponsorships (try for 9 month and if not successfull, take person to your teritory)
3. Relocation of beneficiaries of international protection

4. Capacity building measures

preprocedure to determin the procedure that makes sence for the person.

only 5 days, not very realistic.

 Mandatory border procedures (asylum and return procedure)

max 12 weeks

applicable for all country nationals from countries with a addmission rate lower than 20 %

in situation of extremly high pressure on the system in a country, that can make the system in that country unfunctional
 Solidarity mechanism: Choice of capacity building not allowed, relocation of irregular migrants / persons in border procedures  Extension of time limits

for all people out of countries with recognition rates lower than 20 % screening. 

Then determination if normal  return/asylum procedure or border return/asylum procedure. 

in situations of normal pressure

1. Relocation of applicants

2. Return sponsorships

3. Relocation of beneficiaries

4. Capacity building measures

In Search and resque 

1. not every boat has to be negociated, there is a distribution mechanism

in Crisis: 

1. capacity building not possible as option

2. Relocation of persons in border procedures

3. Relocation of irregular migrants

Mechanism to handel crisis. 

SAR better cooperation, maybe distribution mechanism

probably not. they will worsen the situations for asylum seekers and border memberstates

europe is becomming a fortress. 

Need to think about more legal ways of immigration.

 EU coordinated SAR operations in the Mediterranean 

 EU run reception centers with humane conditions
 EU Asylum Authority (decentralized)
 Fast procedures, but right to an effective remedy

 Distribution according to existing links with Member States 

 Distribution key, more solidarity
 Free movement (after how many years?)

 More possibilities to legally migrate

usually no, we have a procedures directive that should be applicable. 

Only works if turkey is a safe third country.

Also non-refoulement. And the chance to get a legal remedy and suspensif effect for legal procedure. 

only works if it were clear, that turkey is safe.