Legal Briefings

Analysing issues of asylum and human rights law in Europe

Here you can access AIDA Legal Briefings analysing key legal issues relating to asylum in Europe. With the assistance of information gathered from AIDA country reports and comparative reports, these briefings identify and analyse key issues in EU asylum law and policy, in the aim of better informing policymakers, advocacy groups, as well as practitioners of potential protection gaps in the asylum acquis.

 

This briefing documents the expansion of detention policies and practices across Europe. These include the rising use of detention as a migration control instrument, as well as a visible trend of increase in detention infrastructure across Europe, with notable examples of rising detention capacity in the Mediterranean region. The briefing also looks at legal forms of expansion, where the permissive and often uneasy interpretation of concepts derived from criminal law, such as the “risk of absconding” or “public order”, has led to wider use of detention against asylum seekers in contradiction of fundamental rights and safeguards.

This briefing focuses on the concepts of acceleration, prioritisation and fast-tracking, through an overview of their practical application in selected European countries’ asylum procedures.  It explores institutional and administrative arrangements set up for the purpose of managing caseloads, with examples drawn from recent “track” or “cluster” systems developed in different countries. The briefing also analyses the practice of nationality-based differentiation of treatment of asylum claimants, whether under the legal concept of “safe country of origin” or as a matter of administrative practice, and examines the applicable procedural safeguards and necessary guarantees for individuals undergoing accelerated, prioritised or fast-track procedures, with emphasis on time limits for the processing of the application, deadlines and suspensive effect of appeals, as well as legal assistance.

This statistical update provides key figures from 12 European countries on the application of the Dublin Regulation in 2016. Available statistics demonstrate the persisting inefficiency of the Dublin system as a responsibility-allocation mechanism across Europe, as the number of effected transfers of asylum seekers remains considerably low compared to the number of procedures initiated. The update also explores the inconsistency between Dublin and the emergency relocation scheme, leading to a paradoxical transfer of 1,864 people out of Italy to other Member States under relocation and family provisions, and transfer of 2,086 people to Italy under Dublin.

The briefing explores the issuance of travel documents for beneficiaries of international protection. The implementation of international obligations stemming from the 1951 Refugee Convention and from both the currently applicable recast Qualification Directive and the proposed Qualification Regulation are discussed and compared, leading to the conclusion that most European countries apply widely divergent practices concerning the duration of validity, the geographical scope and the content of protection for subsidiary protection beneficiaries. The briefing also looks at the recognition of travel documents issued by other countries and the application of the Council of Europe Agreement on the transfer of responsibility for refugees, and concludes that the absence of a comprehensive legal instrument results in a complex and fragmented legal framework and gives rise to confusion in multiple countries.

The briefing analyses the transposition and implementation of time limits for examining asylum applications in the regular procedure, special procedures applicable to specific caseloads, as well as for deciding on appeals against negative decisions. Overall, European practice confirms the non-binding character of procedural deadlines, which do not seem to be followed by asylum authorities in most cases. On the other hand, the possibility to postpone the examination of an application, recently seen in several countries, has been criticised for unduly delaying outcomes to asylum seekers’ requests for protection.

The briefing discusses the conception of international protection as a precarious and time-limited right in the Common European Asylum System. The short-term design of residence permits under the Qualification Directive not only contrasts with refugee protection traditions in other parts of the world such as Canada and the United States, but seems to be equally distanced from more favourable provisions in three-quarters of EU countries. The distinction in the duration of residence rights available to refugees and subsidiary protection beneficiaries under the Directive also seems to be questioned in light of uniform rules on the duration of residence permits applied to the two statuses in seven EU Member States.

This briefing examines the core principles governing the treatment of children in the asylum process, namely the "best interests of the child" underpinning all actions affecting children, and the "benefit of the doubt", which requires public authorities to treat asylum seekers as children when in doubt as to their minority or majority. Through an overview of practice in European countries, this briefing identifies areas where these principles are at risk of being sidestepped by asylum authorities when conducting age assessments. The over-reliance of States on medical methods of age determination exposes children too readily to intrusive examinations of dubious accuracy, which are often immune from legal challenge. At the same time, States are often predisposed to treat self-declared minors as adults until their age has been confirmed, thereby exposing them to detention, deportation or the application of the Dublin Regulation.

This briefing argues that any assessment of the legality of detention should take place not only from compliance with grounds, necessity and proportionality but also from a procedural rights angle related to the substantive asylum claim itself. Given the individual rights at stake within an asylum process, the complexity of the procedure, language barriers and the multitude of tasks which the applicant must undertake as a consequence of a detention order, refugee status determination procedures and appeals carried out in detention fall considerably short of the requirements of effectiveness. By way of a considerable knock-on effect, then, it is submitted that detention and the conditions that this gives rise to in practice are very difficult to reconcile with the guarantees required by asylum procedures and most notably the effectiveness of these rights, thereby making detention unlawful from the perspective of procedural rights.

This briefing submits that the “safe country of origin” notion presents substantial conceptual and procedural risks in the asylum procedure, The criteria and definition thereof in the recast Asylum Procedures Directive should be cautiously read, given that the safety criteria in the recast Asylum Procedures Directive refer to a “general and systematic” lack of persecution or serious harm which seems to contradict the purpose of the 1951 Refugee Convention. Moreover, the way in which Member States conduct safety assessments with regard to countries of origin is far from homogenous in practice. At the same time, recognition rates for applicants coming from ostensible “safe countries of origin” reveal a concerning discord between general presumptions of safety and the protection needs identified in practice.

This briefing argues that valuable asylum information is lacking from the EU’s knowledge base in a number of important areas. While Member States’ difficulties in complying with their reporting obligations in a timely manner are often crucial to those challenges, a number of gaps in statistical practice are directly related to the EU legal and technical framework itself. Notwithstanding recent methodological improvements in Eurostat’s statistical collection, information on the exact operation of the Dublin Regulation is still far from satisfactory. Detention of asylum seekers is even more concerning an area, given the quasi-absolute absence of information on the numbers of applicants that Member States detain and on the precise legal basis and duration of deprivation of liberty.

This briefing examines the provisions of the Dublin III Regulation relating to detention of asylum seekers and their compliance with fundamental rights. It argues that an appropriate reading of Article 5 of the European Convention on Human Rights (ECHR) and the EU asylum acquis precludes the detention of applicants for international protection - who under the Asylum Procedures Directive have a right to remain on the territory of Member States pending the examination of their claim - for the purpose of deportation to another Member State.

 

 

For case summaries and other legal resources, see the European Database of Asylum Law 

 

About AIDA

The Asylum Information Database (AIDA) is a database managed by the European Council on Refugees and Exiles (ECRE), containing information on asylum procedures, reception conditions, detention and content of international protection across 20 countries.