Silas W. Allard, Casualties of Disharmony: the Exclusion of Asylum Seekers Under the Auspices of the Common European Asylum System

• Jurisdiction: European Union
• Citation: Vol. 24 No. 1
• Publication year: 2010

CASUALTIES OF DISHARMONY: THE EXCLUSION OF ASYLUM SEEKERS UNDER THE AUSPICES OF THE COMMON EUROPEAN ASYLUM SYSTEM

Unfortunately, however, finding safety in today's world is becoming increasingly difficult. While developing countries least able to afford it host most of the world's refugees, many industrialised nations continue to impose ever stricter controls on asylum. All of us bear a responsibility for ensuring that those genuinely in need of international protection receive it.¹

INTRODUCTION

This rebuke to the industrialized nations of the world was delivered in 2005 by United Nations High Commissioner for Refugees, António Guterres, on the occasion of World Refugee Day.²High Commissioner Guterres's remarks serve to remind the industrialized world that protection must be the paramount value in considerations of asylum. However, in its most recent discussion of asylum policy in Europe, the European Union ("EU") reiterated its dual commitments to protection and solidarity.³The EU is committed to "high protection standards" for asylum seekers,⁴which it has described elsewhere as protection to "any persecuted foreigner."⁵However, the EU has placed equal importance on solidarity and burden sharing among member states.⁶This collective attempt to negotiate the values of protection and solidarity has come to be known as the Common European Asylum System ("CEAS").⁷

The CEAS is Europe's attempt to harmonize the asylum process across EU member states, further access to international protection, and collectively fulfill EU member states' common responsibilities to refugees and asylum seekers.⁸

Despite the EU's efforts to improve international protection through harmonization, by its own account, "considerable disparities remain between . . . Member State[s]."⁹Unfortunately, until the EU can eliminate such disparities, the current framework of the CEAS threatens to exclude from

Europe persons genuinely in need of international protection.

Two pieces of CEAS component legislation create this potential for exclusion of cognizable claims to international protection: Council Directive

2004/83 ("Minimum Qualifications Directive")¹⁰and Council Regulation No.

343/2003 ("Dublin II").¹¹The Minimum Qualifications Directive sets minimum standards to qualify for international protection in the EU, but it fails to effectively harmonize member-state policies and practices, leaving asylum applicants with claims that are cognizable in some-but not all-member states.¹²Dublin II controls what state will review an asylum application lodged anywhere in the EU and creates procedures for transferring applications between member states.¹³In short, the failure to create true harmony creates a conflict between the EU's professed goals of protection and solidarity: Dublin II will result in the transfer of asylum applications from member states where claims are cognizable to member states where they are not cognizable; thus, asylum seekers with valid claims run the risk of denial and refoulement to environments of violence or persecution. It would seem that High

Commissioner Guterres's rebuke remains relevant in Europe five years later;¹⁴the failure to make protection the paramount value of the CEAS undermines the EU's ability to offer the highest standard of protection to those fleeing persecution.

Because the EU has taken the lead in attempting to regionalize asylum policy, the ramifications of the CEAS may well be felt outside of Europe. The CEAS is the first effort to create common domestic procedures for implementing the broad norms on refugee protection contained in the relevant international instruments.¹⁵If the CEAS effectively furthers the protection of refugees and eases the burden on states of harbor, it may well prove a model for future regional accords and set interpretive standards for the relevant international instruments.¹⁶

However, the CEAS is far from being the comprehensive, cohesive, and coherent system that the EU is striving for. As noted above, the EU recognizes continuing disparities in the grant and form of international protection throughout Europe.¹⁷In response to these shortfalls, the European Commission has called for further review and revision of existing CEAS component legislation, including the Minimum Qualifications Directive and Dublin II.¹⁸

With a review underway, now is the optimal time for the EU to acknowledge and address the potential zone of exclusion created by the interaction of these two programs.

This Comment will explore how the Minimum Qualifications Directive and Dublin II create a zone of exclusion and offer remedies that the EU should consider as it reviews and revises these components of the CEAS. Part I will review the purpose and development of the CEAS. Part II will examine the workings of the Minimum Qualifications Directive: its relation to the international law of refugee protection and its failure as a mode of harmonization. Part III will consider the operation of Dublin II and analyze its potentially exclusive interaction with the Minimum Qualifications Directive. In conclusion, recommendations will be offered for the EU to consider as it reevaluates the Minimum Qualifications Directive and Dublin II. However, before proceeding, a brief detour through relevant EU terminology is in order.

Terminology

Asylum is an umbrella term used to describe an array of protective measures offered to individuals who cross international boundaries as a result of persecution.¹⁹In both the Minimum Qualifications Directive and Dublin II, the EU employs a technical alternative to asylum: international protection.²⁰

International protection encompasses two types of protection offered under EU law: (1) refugee protection and (2) subsidiary protection.²¹Refugee protection is given to an individual who qualifies as a refugee, a term defined as: a third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it . . . .²²

The EU also creates an alternative regime of protection for individuals at risk of persecution but who do not fall within the definition of a refugee, known as subsidiary protection.²³Subsidiary protection is available to a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm . . . and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.²⁴

There are also informal protections that a state may grant based on compassionate or humanitarian grounds, which fall within a broad definition of asylum but are excluded from the control of the Minimum Qualifications Directive and left to the discretion of EU member states.²⁵In conformity with the Minimum Qualifications Directive and Dublin II, this Comment will use the term "international protection" to refer to the protection available under the auspices of the CEAS. "Asylum" will be used when discussing the individual seeking asylum ("asylum seeker") and the request for protection ("application for asylum").

Lastly, the use of the term "minimum" in the Minimum Qualifications Directive can be misleading. "Minimum" does not describe qualifications that are few in number such that a state complying with the Minimum Qualifications Directive would offer asylum seekers easier access to international protection.²⁶Instead, "minimum" should be understood as describing the most restrictive that an EU member state can make its qualification standards.²⁷A state can be more liberal in its standards for international protection than the Minimum Qualifications Directive dictates, but it cannot be more restrictive.²⁸Thus, a state that merely complies with the

Minimum Qualifications Directive will present greater difficulties to an asylum seeker than a state that has adopted or retained more expansive standards. With those notes of clarification, let us proceed to the discussion of origins.

I. THE PURPOSE AND DEVELOPMENT OF THE CEAS

The CEAS is guided by two foundational principles, which the European Council endorsed at Tampere, Finland in October of 1999²⁹: (1) harmonization of standards at a minimum level and (2) recognition of the acts of one EU member state by all EU member states.³⁰These foundational principles underpin the EU legislation under discussion here. The Minimum Qualifications Directive is a harmonization policy, and Dublin II is a mutual recognition regulation.³¹However, before addressing the CEAS directly, it is important to understand the international legal framework on refugee protection.

A. Standards for Refugee Protection in International Law

In 1951, the international community gathered in Geneva, Switzerland³²to negotiate the Convention Relating to the Status of Refugees ("1951

Convention").³³The conclusion of the 1951 Convention inaugurated a new era of international responsibility and cooperation to protect those displaced from their country of nationality or habitual residence by reason of persecution.³⁴

Promoting the protection of refugees from a solely domestic concern to a common concern of the international community served two purposes: first, international norms more effectively guarantee access to international protection;³⁵second, international norms distribute the burdens of protection among the international community...