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Luck of the Draw for Asylum Seekers in Europe: Why the Common European Asylum System is a Breach of Justice and why a Third Phase of Amendments is Required

Luck of the Draw for Asylum Seekers in Europe: Why the Common European Asylum System is a Breach of Justice and why a Third Phase of Amendments is Required

Sabrina Camboulives

In 2015, approximately 1.3 million refugees crossed into Europe in hopes of seeking asylum.[1] They arrived by sea and also crossed devastated lands.[2] The majority of the refugees in 2015 hailed from Syria, Afghanistan, and Iraq—war-torn countries whose violence has spurred an exodus to the proverbial Promised Land.[3] But is Europe indeed a continent that will equitably cater to each of these refugees? It has certainly tried. But it has certainly failed, as well.

In order to understand the Common European Asylum System (“CEAS”), one must understand the European Union’s (“EU”) various institutions and the role that each of them plays. The EU is comprised of twenty-eight Member States totaling approximately five hundred million individuals.[4] The EU is based on treaties that set forth its objectives and the rules that European institutions are required to follow.[5] The European institutions include the European Parliament (“Parliament”), the European Council (“Council”), and the European Commission (“Commission”).[6] The Council defines the EU’s priorities but does not make law.[7] The Commission proposes new laws that conform to the Council’s priorities.[8] The Parliament chooses to either veto or adopt the Council’s proposed laws.[9] “Law” is used generally in this sense; the “law” in the European Union is promulgated in the form of regulations, directives, and decisions.[10] Regulations are legally binding on all Member States, but directives are different.[11]

The CEAS is comprised primarily of directives, which are not immediately legally binding.[12] EU Member States are permitted to impose their own means to achieve the objective set forth in the Directive.[13] The CEAS’ Directives were first implemented, or “casted,” in 2000 and 2001.[14] Scholars, policymakers, politicians, and constituents have criticized the Directives for “curtailing the rights of those seeking asylum in the EU.”[15] As a result, the European Commission set a goal to issue a second phase of Directives by 2012.[16] While not each Directive was issued by the year 2012, each of the Directives was eventually amended, or “re-casted,” and set into force.[17] The second phase of Directives currently in force (along with two Regulations), include: the Asylum Procedures Directive, the Reception Conditions Directive, the Qualification Directive, the Dublin Regulation, and the Eurodac Regulation.[18] Yet—the second phase of Directives has failed to establish a Common European Asylum System that is indeed common. As a result, it is imperative that the European Commission cast a “third phase” of amendments.

The first part of this Note will explain the purpose and function of each CEAS Directive and Regulation. The second part of this note will set forth the primary failures of each Directive, paying special attention to the failures that have rendered the CEAS uncommon. It is important to understand that the Common European Asylum System has not failed at providing a “common” asylum system because of just one failing. Instead, the CEAS is a sum of its parts, and unfortunately, its parts—or Directives—are each uniquely flawed and each uniquely contributes to what has become an Uncommon European Asylum System. An uncommon asylum system abridges the very rights that the CEAS guarantees: the promise that an asylum seeker will receive common treatment and common chances of obtaining asylum regardless of the EU Member State in which they decide to lodge their application.[19] An asylum seeker should not have to perform research to determine their greatest likelihood of obtaining asylum in Europe before fleeing their dangerous country of origin. This will continue to be the case until a third phase of amendments is drafted.

The third and final part of this Note will provide recommendations for a third phase of amendments to the CEAS. The proposal will set forth recommendations that include adding specific and clarifying language as well as making structural and substantive changes to the Dublin Regulation in particular. The CEAS has attempted to heal its fundamental shortcomings on an ineffective, ad hoc basis. This third phase of amendments will render these temporary and short-cited remedies unnecessary and help the CEAS achieve an asylum system that is indeed common.

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[1] Migrant Crisis: Migration to Europe Explained in Seven Charts, BBC News (Mar. 4, 2016),; European Parliament, The Implementation of the Common European Asylum System 8 (2016).

[2] Migrant Crisis: Migration to Europe Explained in Seven Charts, supra note 1.

[3] Id.

[4] European Union, How the European Union Works: Your Guide to the EU Institutions 3 (2014).

[5] Id.

[6] Id. at 5 (outlining that the European Parliament “represents the EU’s citizens and is directly elected by them,” that the European Council “consists of the Heads of State or Government of the EU Member States,” and that the European Commission “represents the interests of the European Union as a whole”).

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] European Union, supra note 4, at 5; European Comm’n, A Common European Asylum System 3 (2014).

[13] European Union, supra note 4, at 5.

[14] Nadine El-Enany, EU Asylum and Immigration Law Under the Area of Freedom, Security, and Justice, in 867 The Oxford Handbook of European Union Law 873 (2015).

[15] Id.

[16] Id. at 875.

[17] European Comm’n, supra note 12, at 4–8.

[18] Id. The Eurodac Regulation established a fingerprint database to track an asylum seeker’s lodged application. This note will not analyze the Eurodac Regulation because it is limited in purpose and has posed few problems for the CEAS. Council Regulation 603/2013 (L 180/1) (EU).

[19] Common European Asylum System, European Comm’n, (last updated Feb. 10, 2017) (erroneously touting the CEAS’ achievements by claiming “[n]ew EU rules have now been agreed, setting out common high standards and stronger co-operation to ensure that asylum seekers are treated equally in an open and fair system – wherever they apply”).

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