European Asylum Law : and its Relation to International Law
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In Chapter 1 I introduce the question of enquiry, the relation between Community and international law on asylum. Further, I sketch the content of the Refugee Convention, other relevant international law, the historical background of current Community asylum law (i.e. the asylum acquis from before 2000), and discuss the rules of interpretation that apply to international and to Community law. In Chapter 2 I first discuss which consequences the transfer of powers on asylum to the Community may have for the legal obligations of the Member States under international law. Then, I address the question whether and if so, how or in how far the Community is bound to observe international law on asylum. International law may work within the Community legal order in three ways. First, as international customary law, second, as sources for “general principles of Community law” and third, through reference in Article 63 of the Treaty on European Community (TEC). Finally, I discuss the legal meaning of the Charter of Fundamental Rights and the content of Charter provisions that may be relevant for asylum. In Chapter 3 I discuss the Treaty basis for Community legislation on asylum. I analyse the objectives of asylum law as defined by Article 61 TEC, the material, personal and territorial scope of the sub-paragraphs of Article 63 TEC and the concept of harmonisation, in particular minimum harmonisation. It turns out that most Community law on asylum sets “minimum standards”. The Member States must comply with these standards, but they are free to adopt domestic law that sets standards that are more favourable for the asylum seeker or refugee. Finally, I discuss the legal basis for asylum legislation in the Constitution for Europe. In Chapter 4 I introduce the concept of the “common European asylum system”, and describe how the various Directives and Regulations on asylum relate to each other. For example, Directive 2004/83 (the Qualification Directive) does not define its scope of application; in fact, the scope defined in the Draft Directive on Procedures applies. I further describe and analyse some common aspects of the various pieces of Community legislation on asylum, such as objectives, personal scope and so on. In Chapter 5, I analyse the rules on qualification for refugee status, subsidiary protection status and temporary protection status, laid down in the Qualification Directive and the Temporary Protection Directive. I do not address each status separately, but discuss the elements of these definitions (such as standards of risk and proof, actors of protection and so on) in combination, and address in how far these rules are up to the standards set by the Refuge Convention and other relevant instruments of international law. It turns out that the Community legislation is in some aspects up to these international law standards (such as the rules on actors of persecution); that it does not address some other aspects (the standard of proof); and that for yet other topics, it suggests a standard that falls short of international law standards (such as the causal nexus between persecution act and persecution grounds). Finally, I analyse in what respects the requirements for qualification for the various statuses differ, in order to sort out in how far subsidiary protection has practical meaning next to refugee status. In Chapter 6 I discuss asylum procedures I analyse in some detail rules of international law on both examination of asylum applications at first instance and on appeal procedures. In particular, I address the implications of Articles 33 of the Refugee Convention and 3 ECHR, as interpreted by the Strasbourg Court. Then I discuss the standards on asylum procedures laid down in the Procedures Directive – rules on organisation, procedural safeguards and grounds for refusal. It turns out that those safeguards are in some respects inadequate: the rules on access and on a personal interview do not sufficiently secure that the merits of each applicant’s claim are examined in accordance with international law standards. Further, the provisions on subsequent applications and on the safe country of origin exception set standards that, if applied, could lead to refoulement. Finally, I briefly address rules on withdrawal procedures in both international and Community law. In Chapter 7 I address the several varieties of the ‘safe third country exception’ that occur in Community law on asylum: the rules on allocation of applicants within the European Union and the European Economic Area laid down in the Dublin Regulation, the Dublin Convention and related agreements, and the rules on allocation of applicants to safe non-Member States pursuant to the Procedures Directive. I discuss in some detail the implications of international law for all those third country arrangements: the safeguards that the third country should offer (should it perform determination of refugee status?), and the way Member States should examine whether the third country is safe or not (can they assume that another state is safe because it ratified the Refugee Convention, or should they examine in each individual case whether chain refoulement is imminent or not?). Community law rules on the first topic appear to be very much in accordance with international law, but the rules on the second topic show many flaws. In Chapter 8 I address the secondary rights (claim to a residence permit, schooling, access to the labour market et cetera). First, I discuss the personal scope of the various benefits laid down in the Refugee Convention, that is, the question when is a refugee is “lawfully present” or “lawfully staying” as required by several Refugee Convention provisions. Further, I address the question whether formal determination of refugee status is required for entitlement to Convention benefits. It turns out, that such determination is required for some, but not all benefits. Subsequently, I discuss the case-law of the European Court of Human Rights on family unity (Article 8 ECHR) as far as relevant for persons in need of protection. Then I discuss the sets of secondary rights, including claims to family reunification, that are attached to each of the protection statuses established in Community law – refugee, subsidiary protection, temporary protection and applicant status. I compare them and analyse whether these sets are up to the standards set by the Refugee Convention and Article 8 ECHR. In Chapter 9, I address the Community law concerning juridical supervision as far as relevant for asylum law. I address how domestic courts could give effect to Community law on asylum, and which rules appear to have direct effect. Further, the issue on what aspects of international asylum law the European Court of Justice is competent to rule. After discussing the implications of Article 68 TEC for preliminary questions on asylum law, I discuss the possibility of conflicting rulings by the European Court of Justice and domestic courts, and ways to solve such conflicts. Finally, the review by the European Court of Human Rights of Community legislation and Member State acts based on that legislation is discussed. In Chapter 10, I summarise the main conclusions. I conclude that for the present, it is unlikely that Member States will face conflicts between their obligations under international law and those under Community law on asylum, because the latter states for the most part minimum standards. The present set of Community legislation adds to the safeguards set by international asylum law at least in two important respects. First, it entails a subjective right to asylum; second, it partially codifies the Strasbourg case-law on the prohibition on expulsion ex Article 3 ECHR and secures a set of secondary rights for persons within the scope of the latter prohibition. However, Community legislation on asylum states or suggests in many respects standards that fall short of those set by international law, and may hence cause downwards harmonisation.