27 April 2020

Leaving people behind - Proposals for the reorganisation of the Common European Asylum System

The European Commission has announced its intention to present a concept for the reform of the Common European Asylum System in the near future. In fact, the renewal process has been completely stagnant for 4 years now; after long discussions, old ideas are sold as new and innovative. This time is no exception.

Germany, Italy, France and Spain have written a letter to the responsible EU commissioners claiming that they want to have a say in the reorganisation of the Common European Asylum System and already have an idea. Cyprus, Greece, Malta and - confusingly - Italy and Spain again have presented their positions in a non-paper. Both proposals are alike and leave out crucial questions. Above all, they do not provide answers to the question of how procedures should be carried out.

"Solidarity First"

Both ideas initially focus on "solidarity" and a fair sharing of responsibilities; the non-paper refers explicitly to Art. 80 TFEU, while the letter refers implicitly to it. Both proposals are concerned with ensuring that asylum seekers’ applications are fairly distributed, and emphatically reject the first-entry principle. As far as relocation is concerned, the letter from Germany, Italy and Spain, makes no proposals whatsoever. The non-paper proposes a two-stage programme.

  1. The first stage would look for links between people and certain Member States. For example, family and previous stays would be considered.

  2. The second step calls for an automatic random system. On the Member State side, 'fair' means taking into consideration variables such as GDP, GDP per capita, size, population. Persons who pose a threat to public security and order would be excluded.

Nevertheless, the position of the non-paper is, that relocation - if no ties exist - should take place without regard to the person. The asylum procedure and the repatriation of all persons, including those from safe countries of origin, for example, would be the "member state of allocation", i.e. in our understanding the Member State determined by the mechanism would be responsible.

At this point, the question arises as to how Spain and Italy could both participate in the non-paper and sign the letter. This is because the letter states that persons who are clearly not entitled to protection must not remain on the territory of the EU. This means that the first-entry state would have to carry out an examination, because without an examination, deportation cannot legally take place. This follows from European law, from the European Convention on Human Rights and from the Geneva Refugee Convention. We have recently made this clear in a report.

This means: the non paper calls for a relocation regardless of the person concerned – without conducting any part of the asylum procedure (exception: threat to public security and order). On the other hand, the letter calls for an examination by the first-entry state and, apart from "fair share", makes no mention of the relocation mechanism. By signing both letters, Italy and Spain demand both systems, even though they are opposites in practice.

Solidarity for whom? The " size of a human being" does not appear in the calculation

What is striking is that both proposals do not provide answers to the most important question: what does the procedure look like. The non-paper admits: "We have to discuss how to better structure pre-distribution checks (security and health) to be carried out in the Member State of first entry."

The reason why the question about the procedure is not answered is that the "size of the human being" does not play a role in the calculation. "Fair share" and "solidarity" concern Member States, not people. In which direction a procedure should go is shown by the demand that "the EU-Turkey Deal should be fully implemented" and "cooperation with third countries should be strengthened".

The truth is that both proposals - sometimes more (letter), sometimes less (non-paper) – depend on border procedures to work. However, what border procedures lead to can be observed on the Greek islands. Border procedures lead to inhuman conditions and zones of lawlessness. The EU-Turkey deal alone is the reason why people have to 'live' in the camps, because since it came into force it has prohibited people from travelling to mainland Greece.

The rule of law requires that administrative decisions can be reviewed. People must not simply be imprisoned. Nor must people be sent back without a formal procedure; they must have access to legal remedies. Border procedures contribute to making legal protection structurally difficult and often a matter of resources. Border procedures encourage human rights violations.

As long as a political proposal relies on procedures that systematically disregard European and human rights law and result in the inhumane treatment of people, the EU will betray itself.

No allowances after secondary movement

This is also the case when the letter demands that, in order to prevent "secondary movements", states discontinue social allowances to persons who travel to a Member State not responsible for processing their applications. The German Federal Constitutional Court has already stated in 2012 that “human dignity cannot be relativised in terms of migration policy” and that social allowances must not be reduced below a subsistence level for anyone. European law and human rights also prohibit inhuman treatment. The signatories of the letter would like to put this, i.e. a violation of fundamental rights, into legal form. Return to an EU country may also violate a person’s human rights because the situation there could expose them to inhumane or degrading treatment. This has been decided on several occasions in relation to Greece, Italy and Hungary.

Both proposals still perceive migration as a threat. The non-paper explicitly still considers itself to be in a state of emergency with regard to migration - despite a significant decrease in the number of refugees. The reorganisation of the Common European Asylum System will show how much the European Union values its values. The two proposals do not bode well.

Both documents have now been published on Statewatch.

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