The New Pact on Migration and Asylum (part three): Asylum Matters

The new Asylum Management Regulation (AMR), combined with the reforms in its contributing sections, will then create an ideally comprehensive European framework to coordinate a migrant response. However, the system reform could not be considered complete unless the asylum procedures were redesigned. The Commission has made this a clear priority since the 2015 crisis, when major inefficiencies were revealed due to the existence of different nation-based procedures for granting asylum, which were, at the time, brought under a common European Framework by Directive 2013/32/EU on common procedures for granting and withdrawing international protection.

After a series of efforts by the Commission, dating back to 2016, to repeal the latter in favour of a new Regulation, a final agreement was obtained in 2020. The objective behind the Asylum Procedure Regulation proposal is that by achieving a truly shared European framework on the subject, the procedure for granting asylum will be simpler and shorter, while adding necessary stronger requirements to avoid system abuse and secondary migrations. These necessary improvements will be accompanied by new procedural safeguards to protect the applicants’ rights, as envisioned by international law in the area.

To have a thorough understanding of the Union’s asylum regulations, it is required to first examine the text from 2016, followed by an examination of the revisions made in 2020.

The first pillar of the Regulation, drafted in 2016, then, establishes specified time limits for the lodging and processing of applications, the latter in particular in need of urgent revision given that more than half of all asylum applications in the EU are currently languishing for more than 6 months.

The time frame is then determined on the side of the person seeking asylum in the following manner. When a third-country national or stateless person expresses a desire to seek international protection, he or she is considered to have lodged an asylum claim (Article 25(1)). The national authorities are then given three working days to process the request (Article 27(1)). Following registration, the applicant must be given the chance to file applications within ten working days of registration (Article 28(1)). The method to be followed if the applicant is a minor is outlined in Article 32(2).

To guarantee that applications are duly and quickly handled by the competent authority, Member States are required to examine and anticipate their resource requirements on a regular basis in order to maintain the effectiveness of their national systems. In cases where exceptional circumstances, such as a migration crisis, threaten the effectiveness of asylum procedures, Member States can request assistance from the newly established European Union Agency for Asylum. What is now explicitly codified is that the time limit for a conventional procedure of asylum application processing must be six months, with a three-month extension available in circumstances of complex cases of scenario (Article 34(2) and (3)). Accelerated (Article 40(2)) and inadmissible (Article 34(1)) applications, which were previously ignored by the Asylum Directive, now have time limits of two months and one month, respectively. If the grounds for an inadmissible application are that the applicant is from a safe third country or that the nation where the applicant is seeking refuge is not the country of initial entry, the processing period is reduced to ten days.

The purpose of such a short timeframe is to avoid all secondary movements that are not covered by the new asylum grounds set out in the new AMR. If one of the new criteria is recognized to be applicable in a particular situation, the application will not be considered inadmissible (second paragraph of Article 34(1)). The time limit is established at four weeks if the application is made at the border, necessitating a border procedure (Article 41(2)).

Despite establishing specific time restrictions for all possible sorts of applications, the idea has received significant criticism. Notwithstanding the fact that the majority of observers recognize the need to avoid the perpetuation of preferential channels for asylum applications based on different times of processing, most have highlighted that the Commission’s temporal times are either too short or an inefficient tool for effectively resolving the situation.

Because of the decreased time frames governing asylum applications, as well as the difficulty in ensuring that migrants’ rights are fully respected, the Regulation includes particular provisions (Articles 7, 10, 11, and 12) to preserve migrants’ rights and obligations.

Applicants must comply with authorities by giving biometrics and all required materials to confirm their identification and the grounds for application, as well as their contacts and address of residency (Article 7(2) and 7(4)). The applicant must then remain on the territory of the Member State where he has sought refuge (Article 7(5)), in possession of an issued document stating his right to remain for the duration of his application. If the applicant violates this criterion by relocating to a third Member State, his application will be subject to the accelerated procedure to assess if his actions fit within the scope of the AMR.

Asylum seekers, on the other hand, are entitled to a slew of procedural safeguards, particularly given the expedited nature of the asylum process. To ensure that all essential information pertinent to the application procedure is taken into account, all applicants have the right to be heard through a personal interview (Article 12(1)) conducted by the competent authorities of Member States or the European Union Agency for Asylum and Migration. Asylum applicants should have the right to an interpreter during such interviews, as well as the time to discuss their case with their counsel and the right to secrecy.

Except for particular conditions (such as a high likelihood of the request for asylum being granted), all applicants have the right to free legal help if they cannot afford it (Article 15)(1). The new Regulation’s scope also specifies the procedure to be followed if the asylum claimant is a minor (Articles 19, 21 and 22).

In terms of application admissibility, the Regulation harmonizes the idea of ‘Safe Country,’ as if an asylum seeker applies for international protection from a country that could be considered safe, his application may be denied. Such list of countries should be compiled by the European Agency for Migration, in compliance with its prerogatives.

The Regulation also discusses the processes that govern the right to appeal and the circumstances under which the application may be withdrawn. According to Article 54(1), in order to secure the right to effective redress, the asylum seeker has the right to remain in the nation until the time restriction for filing a first level of appeal expires, or, if he has really appealed, until the decision on the appeal is completed. However, if a second appeal is filed, the applicant loses the right to remain in the territory of the Member State (Article 54)(5). In general, reviews are to be carried out by the European Union Agency for Asylum if there is a significant change of status of the country of origin, and when refugees renew their residence permit for the first time, including the second time for beneficiaries of subsidiary protection.

The latest set of revisions made in 2020 are primarily targeted at smoothing the proposal’s edges so that it will seamlessly complement the Reception Directive reform and address the issue of mixed migrant flows, which arose following the 2016 reform. This term refers to a migrant inflow that is not exclusively made up of people in genuine need of international protection, but that also includes a significant number of individuals who have a high chance of having their asylum application rejected. To properly deal with such a circumstance, it is critical that the pre-entry phase be structured in such a way that candidates be swiftly channelled into the appropriate procedure for requesting asylum.

The achievement of this goal is inextricably linked to expanded grounds for using the asylum border procedure, which must be carried out prior to screening (Articles 26 and 27) and before the applicant is effectively admitted into the Member State (Article 41(1) and (2)), implying a period of detention. The scope of such application is further extended to all persons attempting to enter the Union’s territory at an external border crossing point, following search and rescue activities, or if the migrant is apprehended illegally in the territory of a Member State (Article 41 (3)).

Additional grounds for using the process, which were previously only applicable to the accelerated procedure, are also added. The border procedure should then be used if the immigrant poses a threat to national security or public order, if he has misled authorities by providing false information or has withheld relevant information regarding identity or nationality, if the applicant comes from a ‘safe third country,’ or if the applicant comes from a third country with a share of positive asylum decisions that is less than 20%.

Minors under the age of 12 and their families are free from border procedures unless they are regarded a risk to national security (Article 41(3) and (5)), as are persons whose asylum application is likely to be rejected a second time (Article 41 (4)). The latter exemption is to be intended on the basis of nationality, and due to the significant deviation it will represent from the normal criteria for applying the border procedure, it is to be subject to Commission control and applied only in situations of significant difficulties in cooperating with the third country in matters of return.

Article 41(11) specifies the duration of the border procedure. The duration of the application shall not exceed 12 weeks from the time it is filed. The application should be submitted within five days, even if the migrant has been relocated to another Member State judged responsible for accepting its application under the AMR criteria.

If an asylum claim is denied under the new border procedure, criteria for carrying out the return are introduced (Article 41(a)). Individuals whose applications have been denied will be denied admission into the Member State and will be detained at the border until they are repatriated to their country of origin. Applicants who have been denied entry have fifteen days to return home voluntarily. If such a will does not exist, the return shall be completed within a maximum of 12 weeks. Detention can be used during this time if there is a sustained risk that the applicant will seek to enter the country illegally. If the individual was previously held during the border procedure and is subject to detention while awaiting return, the cumulative term of such detention cannot exceed six months.

The proposed proposal streamlines the two procedures of granting asylum and, if rejected, proceeding with repatriation by compelling Member States to communicate them collectively (Article 35(a)). Such convergence is also intended to guarantee that appeal procedures for both rejection and return are carried out concurrently, in order to minimize any delays to the greatest extent possible (Article 53(1)).

If the applicant wishes to lodge a second application within a year of the initial deliberation Article 43 (1(a)), he is not allowed to remain in the territory of the Member State if the following conditions are met:

his removal prior the second application was imminent, it is apparent that such was deliberately made to delay return and it adds no further elements to the precedent claim to international protection. If the subsequent application is furtherly subject to an appeal, the applicant can request the Court to allow him to remain in the Member State while such request is pending, provided that the Member State in question allows for such procedure. From the third appeal onwards right to remain in the Member State ceases to be automatic (Article 53(a)).

The amendments to the proposal of 2016 then strongly move into the direction of reducing the duration of the whole process by giving an almost unique role to border procedures, now favoured in comparison to standard asylum procedures, which last longer. The enhanced scope of the former, now covering all the major instances related to migratory influxes, has been strongly criticized as it seems that its main aim is not ensuring fairer asylum procedures, but ultimately repatriate as fast as possible the largest number of migrants.

The Commission’s other significant concern has been the amendment of the Qualification Directive, particularly in light of the diverse approaches taken by Member States on the subject. This legal document is intended to specify both the preconditions for requesting international protection (prior to asylum procedures) and the material conditions to be obtained given a successful outcome of the asylum procedure. Differences in such criteria have, in fact, increased the problem of secondary migration, since migrants clearly favour Member States with a more permissive attitude toward the issue.

This reform proposal, like the AMR and the new Asylum Procedures Regulation, has been the subject of intensive debate, delaying the implementation of the new Qualification Regulation. The original 2016 plan was subsequently minorly amended in 2018, and it is now mostly in its first version. These small changes are primarily owing to the fact that the preceding Directive’s wording was only minorly modified in light of new political considerations, and its language was changed to comply with the direct applicability arising from the formulation of a Regulation.

However, the key differences between the Qualification Directive and the Qualification Regulation can be described as follows. The Regulation’s maximum scope remains twofold: on the one hand, it establishes the conditions for qualifying third-country nationals or stateless persons as beneficiaries of international protection, and on the other, it establishes the content of the protection that they are afforded. However, granting the status is no longer at the discretion of Member States, who can now only extend humanitarian protection in addition to what is envisioned in the Regulation (Article 3(2)).

To be granted international protection, the seeker must submit all of the information required for a thorough examination and be available until the end of the processes in the Member State of entry (Article 4(1)). Member States retain the authority to deny a migrant’s request for subsidiary protection or refugee status in the second instance if it is discovered that the grounds for such a request are not ‘original’ to the migrant’s circumstances in his birthplace (Article 5(3)). International protection can also be denied if it can be demonstrated that the asylum seeker has the ability to live safely in a part or territory of their country of origin (Article 8(1)). Exclusionary grounds (Article 12) include any agency in crimes, particularly brutal and terroristic ones, even if perpetrated in political capacity (Article 12 (5)). Articles 11 and 17 deal with the termination of the refugee status and the granting of subsidiary protection status.

According to case law of the European Court of Justice, reasons for persecution, and thus applicable grounds for awarding international protection, are any situation in which the applicant is forced to disguise its identity in order to safely remain in the country of origin (Article 10(3)).

In the event that the grounds for protection have ceased to exist, as envisioned in Articles 14 and 20, the refugee and subsidiary protection status should be reviewed routinely. Article 15 should specifically govern review for refugee status in grounds of substantiality and regularity, much as Article 21 regulates review for subsidiarity status.

Article 29 specifies that a recipient of international protection is required to reside in the Member State that awarded the status, with further penalties (Article 44) imposed on those who fail to do so. Furthermore, in order to be granted Long Term Resident Status, the applicant must have a total of five years of residence in the Member State; if the applicant moves to another Member State, the count must be restarted. This clause is intended to discourage secondary movements.

Chapter VII contains information on the applicants’ rights and obligations. Article 24 states first and foremost that the recipient of foreign protection is aware of his or her rights and obligations, as well as the regulations governing mobility inside the Union. Article 25 restates the prerequisites for family union to be deemed a right, in order to align them with current trends that see the arrival of family members spread out over a long period of time.

Article 26 standardizes the issuance of resident permits. Residence permits are required to have access to job opportunities and social security. Beneficiaries of subsidiarity protection will be issued a one-year residence permit that is renewable for two years, while refugees will be granted a three-year visa that is valid for three more years. According to Article 27, applicants who have been granted a residence permit have the right to travel inside the Union prior to the issuance of a one-year document. They also have the right to work (Article 30), as well as the ability to have their abilities validated (Article 32), and to receive social security benefits (Article 33). Beneficiaries of protection are required to participate in integration measures (Article 38).

To ensure that all of the aforementioned rules are administered similarly across the Union, all relevant actors involved in making such decisions should act in accordance with Union direction. Such information should be provided by the European Union Agency for Asylum and the European networks on country of origin (Article 7)(3).