Specific aspects of European asylum law, paradoxes and the principle of solidarity

Specific aspects of European asylum law, paradoxes and the principle of solidarity

5th Lecture

Specific aspects of European asylum law, paradoxes and the principle of solidarity

The paradoxes, the difficulties of balancing and the dimension of the principle of solidarity in the current reform of the Dublin Regulation, the findings of investigations concerning crimes against humanity during the treatment of refugees, as well as the law of unaccompanied minors and the definition of a safe third country were presented and analyzed in the last 5th lecture of the seminar titled “European Asylum and Refugee Law: Modern European Developments and Comparative Dimension”, which took place on Monday, the 26th of February 2018, in the Delegation of the European Commission in Athens.

Mr. A. Syrigos, Associate Professor of International Law & Foreign Policy (Panteion University), analyzed the paradoxes of immigration policy in Europe, which emerged after 2000 and especially in 2015, when massive influx of refugees took place in Europe. The first paradox of this immigration policy is that there is no legal way or corridor for this massive influx of refugees into the European Union. Another paradox is that anyone who arrives in Europe must prove that he or she is a refugee in order to stay in it. The third paradox is whether the asylum seeks are the ones who really do have the need for international protection.

Mr. A. Syrigos, continuing his speech, referred to one more paradox of EU’s immigration policy, that of choosing individuals, where there is a danger and signs of a “beauty contest”, as the individuals selected are usually educated and can adapt to the society more easily. After that, a fifth paradox exists, that of funding Member-States regarding their immigration policy, which seems generous at first glance but in practice, it is not. Moreover, Mr. Syrigos pointed out Germany’s stance regarding suspension of the Schengen Treaty, temporarily restoring border controls ahead of mass arrivals of refugees and migrants in its territory. Moreover, he pointed out that no one in the European Union does not officially speak about the possible alteration of our cultural identity duo to massive influx of refugees into the EU, while stressing that there is no common European asylum system, but just common asylum rules. Lastly, he referred to the problem of returning refugees and immigrants back by talking about a last paradox, that of people who cannot be expelled, who necessarily remain in a “grey zone” regime.

Mrs V. Saranti, a specialist on immigration issues working for the Foreign Affairs Ministry, presented the picture regarding Dublin IV Regulation negotiations. Initially, she made a brief recap of asylum in the EU, which was out of integration processes until the 1980s. But now, asylum law falls under the European law. Based on the Article 78 of the Lisbon Treaty, the EU is now developing a common asylum policy, while Article 80 TFEU incorporates the principle of solidarity and the fair allocation of responsibilities among Member-States. Mrs Saranti spoke about the reform of the CEAS, which is framed by seven legislative initiatives, aiming at forming a common immigration policy. Then she referred to the structure of the Dublin III Regulation, which cornerstone is the family reunification. Regarding the Dublin IV Regulation, Mrs Sarantis pointed out that the Commission has made a proposal, but the four Visegrad countries, namely Hungary, Poland, the Czech Republic and Slovakia, raise objections, thus creating obstacles for the negotiations. She focused on the Commission’s proposal, which requires the pre-Dublin check to be carried out. An examination will take place through the accelerated procedure and when there is a risk to public order or when the applicant comes from a safe country of origin. This enforcement is offset by a compulsory redistribution mechanism in case of disproportionate pressure in the first-entry Member State. As far as family reunions are concerned, Ms Sarantis stressed that they should be exempted from the preliminary admissibility check and referred to the timetable set by the European Council in December with a view to finding a political solution by the end of the Bulgarian presidency.

Mrs Marouda, Associate Professor of Panteion University (Jean Monnet Chair EU Solidarity CIPROHA) and ECRI Vice-President of the Council of Europe, referred to the humanitarian treatment of migratory flows and how the EU and Member States are called upon to address the refugee crisis. Initially, he spoke of the ineffective treatment of Member States in managing migratory flows, addressing the problem of multiple crises inside them. Unlike the Member States, the EU seems to have worked well, providing humanitarian aid within it for the first time at the time of European integration. This was achieved through the ECHO Directorate-General of the European Commission, which worked directly (NGOs) rather than through state structures. The mechanism operated with a special cooperation with the European Commission’s Directorate-General for Home Affairs and Immigration (HOME). The rapporteur noted that the principle of solidarity, as enshrined both in Article 122 and in Article 78 of the Treaty on the Functioning of the EU (Emergency), is of value when it is the person in need and taking into account the needs of the member states, thus achieving a balance, by referring to the present situation as a “balance of terror”. An indispensable element in the activation of the solidarity clause is the recognition of a resulting inequality between Member States and the objective of this inequality being eliminated. Finally, Ms. Marouda has often pointed out during her speech that all financial flows to the humanitarian crisis end in 2020, with no guarantee that they will be renewed.

Mr. Ioannis Kalpouzos, Lecturer at City University London, and Founder of the Global Legal Action Network, analyzed the issue of the “off shore” refugee in Australia from the point of view of International Criminal Law. In particular, it has been analyzed that the “gravity” of International Criminal Law as a means of expressing depreciation can also serve the issue of refugees as the latter are linked to crimes of international criminal law occurring not only in their country of origin but also in their host country. It has also been analyzed that states in their refugee / migrant policymaking want to avoid their responsibility. In the above policy, however, there is an attack, in the sense of International Criminal Law, as the effort to deal with the flows involves their repudiation. Mr. Kalpouzos was in charge of research on Australia’s off shore detention centers in collaboration with Stanford University. The Report from this survey was contacted at the International Criminal Court, and media coverage (eg Guardian, Financial Times).

Chr. Dimakos and G. Masouridou, representatives of the NGO METAprague have analyzed the issue of unaccompanied minors. In particular, the procedural safeguards for asylum applications of unaccompanied minors, consisting mainly of the best interests of the child and the recognition of the benefit of the doubt in each case, have been analyzed. The problems encountered in practice have been highlighted (problematic finding of delinquency in practice in case of doubt, non-observance of deadlines, lack of a Commissioner, non-implementation of the Convention on the Rights of the Child by the Greek authorities), while other categories of minors in need of protection (separated minors traveling with their relatives, accompanying minors).

Finally, Mrs E. Koutsouraki, PhD Lawyer, Postdoctoral Researcher at the European Center for Research and Training of Human Rights and Humanitarian Action of the Panteion University, analyzed the concept of a safe third country. He pointed out that International Law does not require refugees to apply for asylum in the first country where protection can be granted, while stressing the absence of a safe legal framework for the notion of a safe third country. Within the framework of the European Union, the Directive on the process of defining refugee criteria, which refers to the notion of a safe third country, is a bad example of harmonizing the national asylum systems of the Member States. Finally, he stressed that while according to the literature, international standards and official information should determine which countries are safe, however, the Greek authorities have judged Turkey as a safe third country by invoking only the correspondence of the Turkish authorities and ignoring the International Organizations’ Reports.

Writing / editing:

Olga Maria Tsioutra, Katerina Papadopoulou

Researchers at the Jean Monnet European Center of Excellence

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