Rights in chaos: asylum seekers and migrants in the EU

We are facing the largest flow of undocumented migrants and asylum seekers into and within Europe since the Second World War.

In response, much of the discussion is focused on creating political solutions for controlling migration flows, such as ways to strengthen external borders in order to preserve the Schengen system of free movement, and allocation of appropriate asylum seeker quotas. At times, it seems that in the midst of the political debate, some important legal aspects have been given less attention.

The legal questions relate to the ability to guarantee the EU law rights of asylum seekers and migrants. The Common European Asylum System (CEAS) now goes much further than the infamous Dublin system, and even though EU policies with respect to irregularly arriving migrants can be summed up as “block entry, detect and remove from the territory”, there are core rights which determine how this group can be treated during the removal process.

Asylum seekers and the CEAS directives

There are three CEAS directives, which establish rights for those seeking asylum as well as those whose application for protection has been accepted. For the most part they also apply in the UK, which opted into the asylum package during the first round on minimum standards, but opted out of the second round on common standards.

The Reception Conditions Directive gives asylum seekers rights to certain material conditions, such as accommodation, medical care and living assistance, while the Asylum Procedures Directive provides for rights to individual assessment of claims, legal representation, translation and interpretation services, and appeal procedures. Finally, the Qualification Directive sets out the important right to be recognised as a refugee or person entitled to subsidiary protection and not to be returned to the place where they faced persecution or had their rights seriously violated.

Important changes in the second round of CEAS relate in particular to detention. The new version of the Reception Conditions Directive sets out an exhaustive list of grounds for detention, and only very exceptionally can member states extend detention beyond six months. As the UK did not opt in to the revised directive, these changes do not apply here.

Irregular migrants and the Return Directive

Others who arrive without permits and who are not able to claim international protection are irregular migrants and, as stated above, are to be returned under the EU Return Directive (the UK has not opted in to this directive). Coupled with the return, a member state can impose an entry ban on the migrant.

Despite its seemingly harsh approach, this framework has inadvertently contributed to keeping the criminalisation of irregular migrants in check. The Court of Justice confirmed in its judgment of 1 October 2015 that migrants cannot be sentenced to prison for simply being present irregularly in a member state's territory – after all, it is the duty of the member states to remove them as soon as possible. A member state can apply criminal sanctions only where a migrant has defied an entry ban.

Furthermore, as for asylum seekers, irregular migrants must be guaranteed individual assessment and appeal processes, where applicable, and the directive contains specific rules on detention. These rules do not apply in the UK.

Managing the crisis

Given the current situation it is important to ensure that these rights do not simply exist on paper; however, their implementation requires resources. The member states recognised in September that EU and international funds should be increased, and have introduced a scheme for the reallocation of asylum seekers.

In addition, on 23 September the Commission announced the adoption of 40 infringement decisions against member states for failures to implement or apply the asylum directives. It should be noted that while this process can be long and it is likely that few cases will reach the Court of Justice, if a member state has failed completely to adopt any implementation measures, the court has the power to impose fines.

As an alternative to or alongside the infringement proceedings, the Commission can also make use of the early warning, preparedness and crisis management system, introduced by the Dublin revision in 2013. Under this scheme, the Commission can draft a preventive or a crisis management plan if a member state has serious problems due to particular pressures on its asylum system. This enables the Commission, together with the member state, to plan a response as to how to improve the situation.

The Commission has already asked the member states to draft roadmaps on how to deal with migration “hotspots”. It is foreseeable that the crisis management tools will be more widely used as the crisis continues. This kind of exercise enables more accurate pinpointing of the pressures on the member states' systems and helps to better allocate EU resources, which may help to ensure that the rights under the CEAS and return frameworks are realised.