FALQs: The European Union’s Approach to the Current Refugee Crisis

The following is a guest post by Theresa Papademetriou, a senior foreign law specialist at the Law Library of Congress who covers the European Union, Greece, Cyprus and Council of Europe. Theresa has previously blogged on “European Union Law – Global Legal Collection Highlights,” “European Union: Where is the Beef?,” “New Greek Regulation Designed to Fight Tax Evasion Problem: Will it Work?,” and on “The Cyprus Banking Crisis and its Aftermath: Bank Depositors be Aware“. This blog post is part of our Frequently Asked Legal Questions series.

The much-publicized picture of the small boy who escaped Syria with his family who was found drowned on the shores of Turkey; the discovery of 71 people who suffocated on a bus on the Austrian border with Hungary; the death of 300 migrants in overcrowded small flimsy boats trying to reach Lampedusa, a small island off the coast of Italy. These and many other heart-breaking stories have epitomized the suffering and tragedy behind the statistical data gathered by the European Union (EU) and the International Migration Organization (IMO) on the number of fatalities among those trying to flee from war zones in the Middle East and Africa: 3,036 people in 2014, and 2,892 people in 2015.

The EU is facing an extraordinary migrant crisis, which by all accounts is the worst since the end of World War II. The crisis, manifested by the flight of hundreds of thousands of people fleeing their countries (mainly Syria, Eritrea, Iraq, and Afghanistan) to seek refuge elsewhere, has been the litmus test for the EU’s common asylum system. It has similarly been a test for the core values and human rights standards the EU stands for, and for the requirements of solidarity and fair sharing of responsibility among EU members in the field of asylum and immigration as imposed by the Lisbon Treaty (art. 80 of the Treaty on the Functioning of the European Union).

The unprecedented migrant crisis has brought to the forefront a number of underlying issues concerning the handling of sizable migratory flows. In this post, I answer some of the key questions regarding the processing of asylum applications and the different reception conditions among EU members.

1.  How many people have arrived in Europe to seek asylum?

According to statistics presented by the International Migration Organization, in 2014 the total number of asylum-seekers arriving in EU countries was 522,000, with most seeking refuge in Germany, Sweden, and France.  Data indicates that Italy received about 130,000, Greece 388,324, and Hungary 145,000. Among the countries with the highest rate of approval of asylum requests were Germany (93%), Bulgaria (93%), the United Kingdom (89%), Belgium (89%), and France (83%).

2.  What types of assistance do different countries provide to asylum seekers?

Directive 2013/33/EU of the European Parliament and of the Council of June 26, 2013, sets the standards for the reception of applicants for international protection (OJ L 180, 29.6.2013, p. 96). The Directive allows states to provide improved conditions such as higher allowances and living accommodations, depending on states’ socioeconomic conditions.

According to published data on the levels of aid provided by EU Member States to refugees, Germany, which registered close to 218,221 requests for asylum during the first seven months of 2015, offers housing, clothes and health care in the reception centers, and also gives 143 euros monthly to each adult to cover personal needs. In Sweden, the asylum allowance ranges from 60 to 225 euros depending on an individual’s personal status. Minors also receive a monthly allowance between 36 and 159 euros.

France, which received close to 37,919 asylum requests in the first seven months of 2015, provides two kinds of assistance. Asylum seekers, who live in reception centers, receive from 91 to 718 euros depending on family status and the facilities provided. Adults, who do not live in centers, receive a monthly allowance of 718 euros. Moreover, they receive health care and children aged 6-16 years old must attend school. Italy provides asylum seekers food, medical and legal assistance and Italian language lessons. They also receive a residence permit and are given a permit to work until their refugee status is finalized. Great Britain offers accommodations and a weekly allowance of 50 euros per person, health care and free education for children aged 7-17 years old.

3.  What are the key features of the EU asylum system?

At the core of the Common European Asylum System (CEAS), which was established by the EU, are the prohibition of refoulement and the right to asylum, which were guaranteed for the first time at the EU level by the Charter of Fundamental Rights of the European Union (2012 O.J. (C 326) 391). The right to asylum is not absolute but qualified with due respect to the Geneva Convention on the Status of Refugees and its 1967 Protocol (Convention Relating to the Status of Refugees of 28 July 1951, as amended by the New York Protocol of 31 January 1967, (UN Treaty Series, vol. 189, at 150 No. 2545, 1954).

The Charter contains a ban on returning a person to a country where he/she has a well-founded fear of being persecuted or faces a real risk of being tortured or subjected to inhuman or degrading treatment. The non-refoulement principle is incorporated into EU law through article 78 of the Treaty on the Functioning of the EU, which provides the legal basis for the adoption of rules to establish a common asylum policy.

The EU also offers subsidiary protections to those who may not qualify as refugees but have substantial grounds to believe that they would face a real risk of suffering serious harm, if forced to return to their country of origin. (Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (2011, O.J. (L337) 9).)

To implement a common asylum policy, the EU has adopted a number of regulations and directives, which govern every aspect of the asylum process. These include a determination of states responsible for handling asylum requests; a requirement of fingerprinting when an asylum seeker enters the EU; criteria and qualifications that an applicant must meet to be admitted; the conditions under which refugees are received in the territory of the Member States; and return procedures if an application is rejected. The Member States also have to comply with the case law of the European Court of Human Rights (ECHR), which has dealt with cases involving detention of asylum seekers, conditions of reception facilities, and lack of legal remedies (see European Court of Human Rights, FACT SHEET, “Dublin Cases” (July 2015);  see also Council of Europe, Human Rights Files No. 9, Asylum and the European Convention on Human Rights).

4.  How are asylum applications processed?

A key question that must be addressed by the Member State that examines the asylum application is the question of differentiating between migrants who are in need of international protection and those who are merely economic migrants. Unlike economic migrants, those determined to be genuine asylum-seekers will be registered and given a document attesting to their lawful stay and their application will be processed in compliance with EU and national asylum laws.

The Dublin III Regulation determines which Member State is responsible for examining asylum applications based on certain defined criteria. In order to avoid forum shopping, the Regulation provides that the first Member State in which an applicant filed an application will process the asylum request. This is usually the country of first entry (see Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013, establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third country national or a stateless person (OJ L 180, 29.6.2013, p.31).

However, in accordance with the case law of the ECHR, the EU Members must not transfer back refugees to the first country of entry, if the conditions in that country violate human rights standards, which amount to degrading treatment (See case of M.S.S. v. Belgium and Greece, Grand Chamber, Jan. 21, 2011).

To expedite asylum procedures, several EU Members have developed a list of “safe countries of origin.” These are democracies that are not viewed as experiencing war or internal conflict and do not use torture. Migrants from these countries will not be granted asylum.

5.  What are the qualifications for refugee status?

Asylum seekers are eligible for refugee status if, should they be returned to their country of origin, they would suffer serious persecution due to their race, religion, nationality or membership in a particular group. A third-country (a non-EU) national may be eligible for subsidiary protection if he/she would face serious harm if returned to his/her country of origin, including death, torture, or inhuman or degrading treatment. Assessment is done on a case-by-case basis and the applicant must provide documentation. The European Commission estimates that in 2014, 55% of asylum requests were rejected as unfounded.

Asylum seekers whose applications are being reviewed must be given a residence permit for three years and those who qualify for subsidiary protection are given a residence permit of one year. In both instances, the permits are renewable. They must also be given access to employment, education, and  social welfare and health care, under the same conditions as nationals. Those accorded subsidiary protection are given fewer social welfare benefits. Their family members, even if they do not qualify as refugees themselves, must also be given residence permits, travel documents, access to employment and education. (Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (2011, O.J. (L 337) 9).)

Asylum seekers have a right to remain in the territory of the host state while their cases are pending until a final decision is made. The status of a refugee may be revoked, and he/she can be sent to his/her country of origin, if the person constitutes a danger to the host country or if the refugee engages in a serious crime or crimes against peace or war crimes. Persons granted refugee status may lose their status, once the situation in their country of origin has genuinely improved. (Id. arts. 11 & 14.)

Member States may provide for all or some of the required conditions of reception including health care and legal assistance, unless applicants have the financial means to fully support themselves. Member States have an obligation to afford refugees effective access to employment, provided that EU and European Economic Area (EEA) citizens (from Norway, Iceland, and Lichtenstein) and legally-residing nationals from other countries have priority on employment access. (European Union, External Action, EU Relations with the European Economic Area; see also article 15 of  Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection OJ L 180, 29.6.2013, p. 96.)

6.  Are asylum seekers placed into detention?

Under international law, asylum seekers must not be detained due to irregular entry to a country, provided that they present themselves to national authorities without undue delay (see article 31, para. 1 of the  Geneva Convention on the Status of Refugees). Under EU law, the general rule is that persons who have applied for international protection should not be detained unless detention is necessary for the purpose of verification of identity and nationality, or for national security reasons. Detention should be of limited duration and take place in specific detention facilities. Member States may require that asylum applicants undergo medical screening on public health grounds. (Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection OJ L 180, 29.6.2013, p. 96.)

7.  What recent measures have been taken in response to the crisis?

Relocation Plan

In view of the  challenges faced by Member States like Greece and Italy, which have received a disproportional number of refugees, the European Commission in September 2015 proposed a relocation plan. The plan was adopted based on a mechanism contained in article 78(3) of the Treaty on the Functioning of the European Union (FEU), which authorizes the adoption of provisional measures to benefit Members that face an emergency situation in relation to the migratory flow of asylum seekers.

The relocation plan, introduced by the Commission and approved by the Parliament and the Council, will apply to those who have already been in Italy and Greece during the previous six months and to those who arrive in the two months following September 22, 2015, the date the decision entered into force. The 120,000 persons who would be relocated according to the plan are in addition to the 40,000 for whom relocation was already proposed in May, for a total number of 160,000.

The decision provides that 66,000 persons will be relocated to other Member States in accordance with the formula presented below from Italy and Greece (15,600 from Italy and 50,400 from Greece). The remaining 54,000 persons will be relocated from Italy and Greece in the same proportion one year after the entry into force of the decision. For their part, Italy and Greece must undertake to introduce structural reforms to their asylum and immigration policies (Council of the European Union, Council Decision establishing provisional measures in the Area of International Protection for the Benefit of Italy and Greece, September 22, 2015).

According to the relocation plan asylum seekers would be distributed among EU Members based on certain criteria: 40% on the size of the country’s population, 40% of GDP, 10% on unemployment, and another 10% on past acceptance.

The relocation plan adopted by the Commission was a very divisive issue among the Members. Many expressed fears of potential terrorists being among the migrants, while others expressed concerns about the impact of absorption of a large Muslim population on the Christian character of their population.   Certain EU Members, namely the Czech Republic, Hungary, and Slovakia did not vote for the proposal, while Poland, which was initially against, finally voted in favor of it. Two Members, Denmark and the United Kingdom, did not participate in this decision because they had opted out of the EU asylum policy; Ireland, which also has opted out of the asylum policy, has expressed its intention to participate (see BBC News, Migrant crisis: EU ministers approve disputed quota plan, Sept. 22, 2015; see also The Guardian, EU governments push through divisive deal to share 120,000 refugees, Sept. 22, 2015).

The Commission had included Hungary as a third country to benefit from the relocation proposal by relocating 54,000 people in need of international protection. Hungary, however, refused to participate. ( Eszter Zalan, Hungary Rejects EU Offer to Take Refugees, EU Observer, September 11, 2015).

Permanent Relocation Mechanism

The relocation plan also includes a permanent relocation mechanism which will be mandatory for all Member States to use in emergency situations, such as the current one. The Commission also plans to draft a regulation on an EU list of safe countries of origin, which will facilitate a faster screening of requests for asylum. Thus, asylum seekers will be processed faster if they come from Albania, Bosnia and Herzegovina, Macedonia , Kosovo, Montenegro, Serbia and Turkey, countries deemed by the Commission as safe because of their system of governance and human rights records.

In addition, the EU made the commitment to assist countries that are used by migrants to enter the EU with the identification, registration, and fingerprinting of migrants.

8.  How much funding has been provided to assist those involved in the crisis?

In its effort to deal with the recent refugee crisis, the EU has provided assistance to countries and organizations that provide assistance to refugees. The EU thus committed at least 1 billion euros (US$1.11 billion) to fund activities of the United Nations High Commissioner for Refugees and the World Food Program. The EU contributed 3.9 billion euros to Syria to deal with those who have been internally displaced. It has also provided financial assistance to non-member countries that offer refuge to Syrian asylum seekers, including Jordan, Lebanon, and Turkey.

The most recent Asylum, Migration and Integration Fund (AMIF) for the period 2014-20, was funded with 3.137 billion euros for the next seven years to assist EU Members with asylum and migration issues (see European Commission, Asylum, Migration and Integration Fund (AMIF)). In addition, the EU has cooperated with other countries in diplomatic initiatives to find a political solution in countries afflicted by political instability (see European Commission – Fact Sheet, Refugee Crisis: European Commission takes decisive action – Questions and answers, Sept. 9, 2015).

On October 15, 2015, the European Council convened a summit meeting to discuss additional issues relating to the reception of asylum seekers by Member States. As the situation is still ongoing, additional initiatives may be introduced.