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    EU needs a common asylum policy to tackle the refugee crisis

    With the dramatic increase last year in the number of asylum seekers to Europe from war-torn countries the need of a common European approach in tackling the crisis is high on the agenda. The prospect of continued wars and refugee flows make such an approach even more urgent. However, the refugee crisis took EU with surprise and until now the member states have failed to agree, and even less, to implement a common policy.

    The refugee crisis is currently perceived as the most important problem in the EU. This was confirmed last week (27.1) when the EU media poll by ComRes/Burson-Marsteller was presented at a briefing at the Brussels Press Club. Asked to “rank a number of policy issues in order of priority for the EU to tackle right now”, 76 % of the respondents (of a representative sample of MEPs, EU staff and opinion formers) listed the refugee crisis as the number one priority.

    Last year EU took some important decisions which were supposed to enable it to manage the refugee crisis and to assist the two most affected member states. Reception centers (“hot spots”) would be established in Italy and Greece where asylum seekers would be registered and finger printed. From there 120 000 people would be relocated to other member states where their applications would be processed. Until now only a few hundreds have been relocated.

    The ongoing refugee crisis has put significant pressure on EUs Common European Asylum System and specifically on the so-called Dublin Regulation, which for the EU established the criteria for assigning responsibilities to member states when dealing with asylum seekers and refugees – but with little success thus far. Media is describing the refugee crisis as a political time bomb.

    This became clear when listening to Ulrich Becker, Director at the Max Planck Institute for Social Law and Social Policy, at a discussion last week (25.1) at the Population Europe Office in Brussels. The purpose of the discussion was to look at options for reviewing the Dublin regulation and the asylum system. “The refugee crisis has become a catchword for the joint failure of the EU and member states,” he said. “EU must react to the crisis and the war in Syria.”

    Professor Becker underlined that the Treaty on the Functioning of the European Union (TFEU) is very clear on the need to develop a common policy on asylum and protection in accordance with the Geneva Refugee Convention (article 78). The TFEU (article 80) also states that the policies of the Union and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the member states.

    But when law meets reality it’s the latter that has the upper hand. Member states have reacted in different ways to the refugee crisis and are blaming each-other. “They are supposed to share the same values but are applying them differently in the refugee crisis,” he said diplomatically.

    The European Common asylum system is built on five directives or regulations. Two of them have been revised or updated to improve the quality of decision-making and entered into force only on 21 July 2015.

    Qualification Directive (2004/83/EC) on establishing common grounds to grant international protection

    Asylum Procedures Directive (2013/32/EU) on common standards of safeguards and guarantees to access a fair and efficient asylum procedure

    Reception Conditions Directive (2013/33/EU) on common standards of conditions of living of asylum applicants

    Temporary Protection Directive (2001/55/EC) on minimum standards for giving temporary protection in the event of a mass influx of displace persons

    Dublin III Regulation (2013/604/EU) on establishing the criteria and mechanisms for determining the member state responsible examining an application for asylum

    In practice, the system hasn’t worked. “Member states couldn’t or didn’t want to follow all procedures in the Asylum Procedures Directive and the Dublin III Regulation. There are still big differences between them in applying the Qualification Directive, resulting in variation in acceptance rates by country. The Temporary Protection Directive could have played an important role but it doesn’t work,” Professor Becker summaries.

    The rules in the Dublin III regulation are complicated and they play off the northern and central European countries against the southern countries where the asylum applicants first arrived. “A member state is obliged to check every single case and identify the first EU country to which the asylum seeker should be sent back. If this isn’t done, the asylum seeker cannot be sent back.”

    And in November 2013 the European Court of Justice ruled that asylum seekers shouldn’t be returned to Greece, despite it was the first EU country where they had applied for asylum, because of the unsatisfactory reception conditions and the risk of infringements on their human rights.

    The Brussels Times asked the European Commission about on-going infringement procedures against member states for failing to communicate the transposition of asylum directives or for fully implementing them. It turned out that in 2015 the Commission launched quite a number of such procedures. The first step in the procedure is a Letter of Formal Notice (LFR), which can be followed by a Reasoned Opinion in case of a non-satisfactory answer.

    In September 2015, the Commission adopted 40 infringement decisions, most of them Letters of Formal Notice, to 19 member states from all parts of the EU for having failed to communicate national measures to transpose the revised Asylum Procedures and Reception Conditions Directives. Member states have two months to respond to the LFR.

    It seems that Greece and Malta were the only member states that didn’t reply in time. This resulted in the Commission sending reminders in December 2015 in form of Reasoned Opinions to the two countries. In addition Letters of Formal Notice were sent to Greece, Croatia and Italy urging them to correctly implementing an EU regulation which provides for effective fingerprinting of asylum seekers.

    Effective monitoring of the implementation of the EU asylum legislation is a must. But it’s hardly enough to ensure a fair and uniform European asylum system. For this some form of sharing of the burden should be enforced. Last week (27.1) European Council president Donald Tusk warned EU that “we have no more than two months to get things under control.”

    M. Apelblat
    The Brussels Times
    m.apelblat@brusselstimes.com