Reforming The Common European Asylum System - Legislative Developments and Judicial Activism of The European Courts

SPRINGER BRIEFS IN LAW
Samantha Velluti
Reforming the
Common European
Asylum System -
Legislative
Developments and
Judicial Activism
of the European Courts
SpringerBriefs in Law
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Samantha Velluti
Reforming the Common

European Asylum System -
Legislative Developments
and Judicial Activism of the
European Courts
123
Samantha Velluti
College of Social Science
University of Lincoln
Lincoln
UK
ISSN 2192-855X ISSN 2192-8568 (electronic)

ISBN 978-3-642-40266-1 ISBN 978-3-642-40267-8 (eBook)
DOI 10.1007/978-3-642-40267-8
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To Khaled
Preface
In June 2013, the amended European Union (EU) legislation on asylum was
adopted after lengthy and complex negotiations. The recast ‘‘asylum package’’
represents a significant step forward in the further development of a Common
European Asylum System (CEAS). Since the 1999 Tampere Conclusions, there
has also been a series of landmark rulings of the European Court of Human Rights
(ECtHR) and the European Court of Justice of the European Union (ECJ) which,
combined with important constitutional and institutional changes introduced by the
2009 Treaty of Lisbon (ToL), has visibly changed the juridical and legal landscape
in the area of asylum. Despite the progress made so far, the EU protection regime
for refugees remains characterized by an underlying tension between a security
paradigm and a human rights-based approach.
This timely volume provides fresh insights into legislative and judicial devel-
opments from a fundamental human rights perspective and responds to some of the
contemporary challenges faced by the EU protection regime, with a particular
focus on the rights of asylum-seekers.
Many of the ideas in this book are the end-result of collaborative research
undertaken during my Visiting Professorship at the School of Law of the Uni-
versity of Cagliari in Italy in 2012. I am grateful to a number of colleagues,
particularly Francesca Ippolito, with whom I had the opportunity to discuss at
length a number of issues in relation to European asylum law, which I elaborate
further in this book. I would also like to thank Sandra Wickenhauser at Springer
for inviting me to contribute to the Springer Briefs Series in Law and for her
enduring patience as completion was delayed by recent judicial and legislative
developments at European level.
As an increasing number of people around the world are forced to flee their own
country for fear of persecution, it is to them and to their heroic courage that this
volume is dedicated.
July 2013 Samantha Velluti
vii
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2 The Road to the Common European Asylum System:

From Amsterdam to Lisbon and Beyond . . . . . . . . . . . . . . . . . .. 5
2.1 Harmonization in Asylum and, Sovereignty as an Essentially
Contested Concept . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 5
2.1.1 Refugee Protection and International Refugee Law
in the EU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10
2.1.2 The Treaty of Amsterdam, EU Competence
and Asylum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 13
2.1.3 Key Changes to the Legal Framework since
the Treaty of Lisbon . . . . . . . . . . . . . . . . . . . . . . . . .. 21
2.1.4 The Significance of the EU Charter of Fundamental
Rights and Freedoms in Strengthening Protection
Seekers’ Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 26
2.1.5 From ‘‘Minimum’’ to ‘‘More Favourable Standards’’
to ‘‘Common’’: Where Do We Draw the Line?. . . . . . .. 29
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 32
3 Recasting of Asylum Legislation: Nolumus leges mutari! . . . . . . . . 39

3.1 The Dublin III Regulation: (Still) in Search of a Dialogue
Between Burden Sharing, Mutual Trust and Guarantee
of Non-refoulement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
3.2 The New Qualification Directive: Who is the New Refugee? . . . 50
3.3 The Recasting of the Asylum Procedures Directive: Effective,
Fair…or Neither? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
3.4 The Revised Reception Conditions Directive: Towards
More Harmonized and Dignified Standards of Living?. . . . . . . . 62
3.5 Challenges to Harmonization: The Absence of a True Dialectic
Between a Rights-Based Approach and a Migration
Control-Based Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
ix
x Contents
4 The Role of the European Courts in Ensuring Adequate

Standards of Asylum-Seekers’ Human Rights’ Protection
in Europe After Lisbon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
4.1 The European Court of Human Rights and the European Court
of Justice as ‘‘Regional Refugee Law Courts’’ . . . . . . . . . . . . . 77
4.2 The European Court of Human Rights and Asylum . . . . . . . . . . 79
4.3 The European Court of Justice and Asylum . . . . . . . . . . . . . . . 87
4.4 Reflecting on the Role of the European Courts
in the Protection of Asylum-Seekers’ Human Rights . . . . . . . . . 99
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
5 CEAS, Asylum-Seekers and EU Human Rights Post-Lisbon:

Closing the Gaps in the European Protection Regime . . . . . . . . . . 105
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Abstract
By drawing on a human rights-based and de-constructivist approach, this volume

critically examines selected EU instruments aimed at protecting asylum-seekers. It
starts by unpacking underlying tensions in the field of asylum which are rooted in
classical understandings of national sovereignty best described as a ‘‘trinity of
unity,’’ namely, a unitary territory, a unitary force, and a unitary people. It then
proceeds to the analysis of the recasting of selected EU asylum legislative
instruments. The reform aims at introducing a significant shift in the nature of
legislation by way of introducing mandatory obligations for the Member States
together with the abolition of opt-out clauses and a full harmonization of both
procedures and standards, which are also in line with the changes made by the
ToL. On the basis of a comparative analysis of a series of key asylum cases,
the volume also intends to critically examine the jurisprudence of the ECJ and the
ECtHR vis-à-vis the European Convention of Human Rights (ECHR) and the EU
Charter of Fundamental Rights and Freedoms (EU Charter).
The volume assesses whether the EU provides an adequate framework for
protecting those seeking international protection from the (opposing) perspectives
of effectiveness and fairness. It shows that, despite the newly adopted ‘‘second-
generation’’ legislative acts which include changes aimed at ensuring a stronger
level of protection for asylum-seekers, the reform process at European level does
not adequately ensure an equal standard of protection across all Member States. It
is posited that a way to adequately address the gaps and inconsistencies in extant
EU asylum law, as well as its numerous problematic applications, is through
principled implementation by the Member States, that is, in compliance with their
international refugee and human rights obligations. Increasingly, both national and
European Courts will be called to play a key monitoring function to ensure that
standards and guarantees are met. In this context, the book suggests that further
mutual engagement is required between the two European Courts and also outlines
a proposal for the creation of an ad hoc EU asylum court.
xi
Chapter 1
Introduction
The harmonization of national asylum laws and policies has primarily been con-
ceived as a way of limiting the ‘‘secondary movement’’ of asylum-seekers,
namely, the migration to that Member State where they could enjoy the most
generous conditions and higher probability of recognition and legal status of
refugee or other form of international protection. Hence, EU asylum law has
mainly aimed at reducing the incentive to move and encourage asylum-seekers to
remain in the first Member State in which they could seek protection. In recent
years, as an increasing number of protection-seekers are coming to the EU to be
granted some form of international protection, asylum can no longer be considered
only in terms of management but also requires Member States to balance the
achievement of efficiency in regulation with granting a set of basic rights for
protection-seekers.
After more than 10 years of existence of CEAS, it is apposite to examine its key
characteristics and, in this context, look at how it has influenced the nature of
refugee protection. This volume, therefore, intends to critically examine key EU
legislative instruments adopted in the field of asylum in order to evaluate the
standard of protection afforded to asylum-seekers. The core of the book comprises
an examination of the reform of existing legislative instruments as well as the
case-law of the European Courts. In particular, this volume is set out to assess
whether the EU provides an adequate framework for protecting those seeking
international protection from the (opposing) perspectives of effectiveness and
fairness and shows that, in spite of some changes ensuring a stronger level of
protection of asylum-seekers, the reform fails to provide the basis for ensuring an
equal standard of protection across all EU Member States. The volume does not
aim to present a comprehensive analysis of all amendments made to existing
legislation but seeks to examine the most significant changes addressing issues
which are of a particularly problematic nature from a human rights perspective.
As the book will go on to show, the first phase of CEAS did not fully achieve
the expected results of coherence, uniform interpretation and application of EU
asylum law. To date, measures adopted in this field display so-called ‘‘common
denominator’’ solutions and have given Member States ample discretion. The
strong focus on securitization has eroded the distinction between refugee
S. Velluti, Reforming the Common European Asylum System - Legislative 1

Developments and Judicial Activism of the European Courts, SpringerBriefs in Law,
DOI: 10.1007/978-3-642-40267-8_1, The Author(s) 2014
2 1 Introduction
protection and migration control in asylum law and policy and has legitimized the
pursuit of restrictive asylum policies, even though it fundamentally contradicts the
international obligations of the EU and its Member States with international ref-
ugee and human rights law. To remedy to this state of affairs, the European
Commission had originally proposed an ambitious recasting programme of the
main legislative measures with the aim of changing the nature of the legislation. In
particular, the original aim was to introduce mandatory obligations for the Member
States together with the abolition of opt-out clauses and a full harmonization of
both procedures and standards, which were also in line with the changes made by
the ToL. However, in the course of the various negotiation stages most of the
original drafts were significantly watered down especially by the amendments
introduced by the Council of Ministers. For this reason as we shall see, the reform
process has not resulted in a major overhaul of the EU asylum system.
The research is grounded in a human rights framework of inquiry, combined
with a so-called ‘‘de-constructivist approach,’’1 which is used to unravel and
critically examine the normative inconsistencies inherent in the EU’s ‘‘securi-
tized’’ approach to asylum. In particular, by drawing on the above methodology
the book intends to unpack and evaluate the incongruence’s engendered by the
persistence in relying on a dichotomic approach to asylum, namely, one based on
migration control/management and the officialised overarching objective of
developing a CEAS truly founded on a rights-based approach to protection.
The rights-based approach embraced in this volume presupposes the existence
of high quality EU asylum standards concerning in particular the conditions and
criteria for determining asylum in the EU. The latter are reflected in the totality of
procedural and substantive aspects of the standards governing the examination of
asylum application, including the definition of beneficiaries of international pro-
tection.2 The quality of these asylum standards can be meaningfully assessed by
reference to three parameters,3 which is here posited, a truly rights-based and
refugee protection approach should aspire to:
• the likelihood that asylum applicants with comparable case background will
receive identical decisions on their application in different Member States and
consequently reduced secondary movements;
1
I loosely rely on Derrida’s approach to ‘‘deconstructivism.’’ See Ref. [1]. As intended here,
deconstruction involves a process made up of various stages. First, it is necessary to overturn a
hierarchy of oppositions, both logical and axiological, which are at work in all the measures
adopted in the context of CEAS. This will help to expose the way oppositions work and how
meaning and values in the law are produced. Overturning is not intended as surpassing
oppositions because they are structurally necessary in any given policy area. What it means is that
they need to be subjected to thorough analysis and critique. In this way, the deconstructivist
approach exposes the differences and eternal interplay between oppositions and helps to
formulate new concepts and ideas in relation to the proper functioning of CEAS.
2
See Ref. [2].
3
Idem.
1 Introduction 3
• the effective fulfilment across Member States of the minimum standards for the
identification and protection of refugee and beneficiaries of subsidiary protec-
tion as well as reception standards for asylum-seekers and the procedural
guarantees for asylum applications, laid down in EU asylum law;
• the conformity of the standards developed at EU level as well as implementing
measures of the Member States with international refugee and human rights law.
The book draws extensively on official EU documentation as well as policy
analysis, policy briefs and studies commissioned by the European Parliament and
the European Commission. It also relies on position papers, reports and studies of
the United Nations High Commissioner for Refugees (UNHCR), the European
Council on Refugees and Exiles (ECRE) and selected non-governmental organi-
zations (NGOs) such as Amnesty International (AI) and Statewatch, all of which
closely monitor the developments in EU asylum law.
At the time of writing, CEAS has just entered into its second phase. The recast
instruments represent a notable improvement but they still fall significantly short
of full compliance with human rights obligations at international and European
levels. The research findings of this volume point to a gap between the Union’s
commitment to the equal treatment and protection of the rights of asylum-seekers
and the ability and willingness of the legislative institutions to make that com-
mitment a reality. The legislative deadlock of the second phase of CEAS and the
lack of intra-state trust and solidarity stifled progress in truly reforming the CEAS
legal system. Against this backcloth, the analysis also intends to look at whether
the European Courts with their respective rights-based policy agenda may over-
come the limitations of existing EU asylum measures. In this context, the broader
aim is to unravel the complex and evolving constitutional relationship between the
EU and the overall system of the ECHR from the perspective of effective legal and
judicial protection of fundamental rights for protection-seekers. In so doing, it
concentrates largely on the ECHR and the EU Charter, which provide the basis for
the jurisprudential analysis of asylum cases.
The book’s main argument is that, in spite of the existence of certain limitations
in both of the European Courts’ jurisprudence, the role of the ECtHR and the ECJ as
‘‘regional refugee courts’’ is central to the effective guarantee of protection-seeker’s
fundamental rights, particularly in consideration of the piecemeal progress
achieved through the reform of EU asylum legislation. By way of conclusion, it
puts forward a tentative proposal for the creation of an ad hoc EU asylum court.
The book starts by examining key elements and characteristics of CEAS, both
of a legal and non-legal nature, including a critique of the various conceptions of
sovereignty which, is here posited, is an ‘‘essentially contested concept.’’ This
analysis is necessary to unfold some of the underlying tensions at the basis of
CEAS, which explain the internal contradictions and inconsistencies and the gap
between the EU’s purported aim of promoting human rights and its security-based
(or state-centred) approach to EU asylum law. The book then proceeds to a
detailed critical analysis of the recast legislative instruments and illustrates the
extent of substantive continuity with the first phase of CEAS and some positive
4 1 Introduction
changes from the perspective of protection-seekers’ human rights, which in con-

trast constitute a break from past legislation. It subsequently evaluates the role of
the European Courts and the nature of their relationship through jurisprudential
analysis of key asylum cases and assesses the degree of reciprocal ‘‘osmosis’’ and
the extent to which this mutual engagement may strengthen the protection of
protection-seekers’ rights within the EU asylum system. The concluding chapter to
the book reflects on the legislative and judicial developments at European level
examined in the previous chapters and looks at future prospects, including the
possibility of setting up an ad hoc EU asylum court.
References
1. Legrand P (ed) (2009) Derrida and law. Ashgate, Farnham

2. Vedsted-Jansen J (2011) Conditions and criteria for determining asylum. In: Goudappel F,
Raulus HS (eds) The future of asylum in the European Union, problems, proposals and human
rights. Springer, The Hague, pp 139–140
Chapter 2
The Road to the Common European
Asylum System: From Amsterdam
to Lisbon and Beyond
2.1 Harmonization in Asylum and, Sovereignty

as an Essentially Contested Concept
Any investigation of the EU asylum system and the creation of CEAS necessarily
requires an analytical approach which unpacks its inherent tensions.1 The multi-
faceted conflict that underlies this area of EU law results from a rather uneasy
cohabitation between intergovernmentalism and supranationalism and opposing
objectives and discourses, namely, economic, efficiency/management and securi-
tization goals versus human rights protection, fairness and justice.2 The main
challenges concerning the development of CEAS are only partially explained by
the significant institutional and socio-economic differences between Member
States. Key to a true understanding of the nature of the problems concerning
asylum law and policies is their strong connection to ideas of the (primacy of)
nation state, state sovereignty and state territory and borders which still play a
central and determining role in the way Member States adopt measures in this
field. What this tells us is that the nature and function of sovereignty is not a jaded
question—far from it. This per se is seemingly a paradox in the current multi-polar
system of policy-making and is counterintuitive to post-Westphalian societal
1
The term ‘‘essentially contested concept’’ was first developed in the philosophy of language,
see Ref. [1]; in the EU context, Besson defines it as ‘a concept that not only expresses a normative
standard and whose conceptions differ from one person to the other, but whose correct application
is to create disagreement over its correct application or, in other words, over what the concept
itself is…. It is [the concept’s] nature not only to be contested, but to be contestable in [its]
essence, so that not only [its] applications, but also [its] core elements or criteria are contestable;’
see Ref. [2], at 6, available at http://eiop.or.at/eiop/texte/2004-015a.htm.
2
It should be noted that these tensions extend to the whole AFSJ. Walker maintains that ‘these
fundamental value dilemmas are compounded by problems of political feasibility and
implementation,’ Ref. [3], at p. 25.

DOI: 10.1007/978-3-642-40267-8_2, The Author(s) 2014
6 2 The Road to the Common European Asylum System
structures. However, the importance placed on national sovereignty and statehood

in the imagery of many Europeans constitutes a major obstacle to the objective of
harmonization so strongly advocated at European level. And yet it matters.3
Indeed, the refugee in international law occupies a legal space characterized by the
principle of state sovereignty and the related principles of territorial supremacy
and self-preservation.4 In a similar vein, Diez5 effectively describes the classical
understanding of state sovereignty as a ‘‘trinity of unity,’’ that is, a unitary terri-
tory, a unitary force and a unitary people. However, the emergence of new col-
lective actors ‘working within, across and above state lines’ such as for example
the EU has exposed the legal fiction of states’ sole centrality in world politics.6
Nevertheless, state borders are decisive in determining the status of refugee as it is
only ‘by crossing borders of sovereignty out of and into territories that they come
into existence.’7 It is precisely the border of state sovereignty that defines who is a
refugee and thus enables individuals to be granted a status of international law
entitlements and rights.8 Hence, sovereignty is used to constitute societies but also
to exclude from societies,9 as embodied in the populist rhetoric of ‘‘We’’ versus
the ‘‘Other.’’
One solution to this conundrum which may be more apposite to contemporary
reality is to embrace what Kostakopoulou coins as a ‘‘floating’’ conception of
sovereignty,10 namely, one that rather than being premised on a dichotomic and
fallacious thinking centred on retention/obliteration of sovereignty and the
‘nihilism of its irrelevance and the equally unhelpful view of its ubiquity’11
acknowledges that it is an open-ended concept which reflects how states them-
selves are subject to constant change in line with mutating global, regional and
local exigencies and environments.12 After all, as Krasner pithily puts it ‘there may
3
It matters because sovereignty and statehood are inextricably intertwined with identity, i.e. who
we are, who is a friend, who is an enemy, and who is a stranger, and history, i.e. where we came
from, how we became friends, how we got here, where we are, and where we are going in the
future. It therefore provides the ontological and legitimating mooring of state intervention and
regulation, see Ref. [4].
4
See Ref. [5].
5
See Ref. [6].
6
See Ref. [7], at 136; for a polycentric conception of sovereignty which does not entail the
demise of the state, see Ref. [8, 9].
7
See Ref. [10].
8
Ibidem, 414.
9
See Ref. [11], at 1118.
10
See Ref. [7], see footnote 6.
11
I have borrowed this expression from French who examines similar issues in relation to the
role of autonomy in international environmental law, see Ref. [12], at 263.
12
By the same token, Besson refers to the necessary ‘‘reflexive’’ nature of sovereignty, in that its
correct use requires a process of perpetual contestation of one’s conceptions of the concept and
therefore one’s exercise of sovereignty; see Ref. [2], see footnote 1.
2.1 Harmonization in Asylum and, Sovereignty as an Essentially 7
still be a modal tendency that pulls actors back to conventional sovereignty.’13 In

this context, the EU should no longer be viewed or portrayed as akin to a
‘behemoth that is completely beyond the purview of the state,’14 but rather as
providing the locus for seamless interplay between different layers of policy-
making, that is, shared sovereignty.15 In this way we acknowledge the polycentric
nature of the European polity as well as rejecting an etiolated version of the state.16
Hence, the linear relations among rules are replaced by ‘‘circular or looped hier-
archy’’ of law.17 In this regard, Besson18 refers to the cooperative nature of sov-
ereignty which combined with the principle of subsidiarity ensures the allocation
of power to those authorities that are best placed to ensure the protection of shared
sovereign values and principles, such as the values of democracy and fundamental
rights. Hence, cooperative sovereignty provides the normative framework for the
development of a dynamic and reflexive form of constitutionalism. At this junc-
ture, it is apposite to reproduce a passage from Krasner’s article on sovereignty19
for his acute and lucid analysis of state sovereignty in contemporary world politics:
there is an inescapable tension in the sovereign state system. Rulers have often decided
that they are better off violating Westphalian/Vattelian sovereignty than honouring it. In
some cases, they have voluntarily ceded some of the autonomy of their own state. In other
cases, leaders of powerful states have used coercion to compromise the autonomy of
weaker states. The willingness of political leaders to violate Westphalian/Vattelian sov-
ereignty is not surprising, given the absence of any final authoritative decision maker in
the international system, and differences in power, interests, and values across states.
13
See Ref. [13], at 1078.
14
See French (2009), see footnote 11, at 267.
15
In a similar vein, ‘‘inclusive sovereignty’’ conceives power as an ability to maintain control
over some decisive factors as well as influencing other agents (e.g. states) acting within a wider
structure of governance such as for example global financial markets, international relations, and
international organizations. Hence, inclusion and influence replace exclusion and autonomy.
Additionally, the centres of such power do not necessarily coincide with traditional states. See
e.g. Refs. [14, 15].
16
Sarooshi cogently maintains that the essentially contested nature of sovereignty remains the
same whether we talk about national or international sovereignty. This unity of identity provides
a compelling reason for international organizations’ existence and, linked to that, a rationale for
the construction of the normative framework that governs international organizations in the
exercise of their delegated powers of government. This two-fold claim is substantiated by the fact
that organizations provide a forum, transcendental to the state, where conceptions of sovereignty-
and more specifically the content of sovereign values- can be contested on the international plane.
This—according to Sarooshi- will be effectively achieved through the application of domestic
administrative or public law principles to the definition of an international organization’s
normative framework of competence and use of delegated powers. See Sarooshi (2003–2004), see
footnote 9.
17
A ‘‘looped hierarchy’’ is defined as an interaction among various levels of decision-making
(within the hierarchical order) in which the highest level directs back to the lowest level and
influences it while at the same time the highest level is determined itself by the lowest one, see
Ref. [16].
18
See Besson (2004), see footnote 1.
19
Ibidem, 1084.
Thus, there is a hole in the whole of the sovereign state system.20 One of the system’s
basic norms, the expectation that each state will be autonomous—not subject to any higher
authority within its own borders- has and will continue to be transgressed.
This form of ‘‘organised hypocrisy’’21 is not unsurprising. Brunsson argues that

hypocrisy is a response to or a means to handle conflict, especially for and within
organizations which are constantly the subject of and subjected to conflict.22 While
hypocrisy may be considered part of life and is thus inescapable in the interna-
tional state system, the unwanted consequence is a legal system where it is not
possible to adopt a coherent set of norms or, more generally, body of law.23 In a
nutshell: an unhappy and unstable situation where tension is inescapable.
The foregoing analysis of sovereignty, highlighting its multiple readings and
essentially contested connotation, explains why in the EU asylum system law
performs two main functions: an instrumental/control and a protective function. In
particular, European asylum policies have come to incorporate means and ele-
ments of migration policy, in particular, migration control, which is mostly visible
in the asylum procedure but is also highly present in the external aspects of asylum
policy.24 This close interconnection between offering protection to those seeking
asylum and controlling immigration can also be seen in the language used in
official documents such as the Stockholm Programme where there is reference to
legally safe and efficient asylum procedures and at the same time the need to
combat illegal migration.25 The protective function of asylum law is in essence the
non-refoulement principle as per Article 33 of the 1951 Geneva Convention and
Article 3 ECHR.26 In the context of EU asylum law it manifests itself in a two-fold
way: one of reinforcement and one of mere acknowledgment.27 The reinforcing
effect can be seen in the right to asylum becoming a genuine residential right of
territorial asylum within the Member States of the EU, namely, those who are
granted refugee status or in need of subsidiary protection being given a residence
permit.28 The mere acknowledgment of existing legal obligations can be seen in
20
Emphasis added.
21
See Ref. [17].
22
See Ref. [18], at pp. 201 and 203.
23
See Ref. [17], see footnote 21, at 1084.
24
Securitization theory is pivotal for the understanding of the restrictive trajectory character-
izing EU asylum measures, see further Refs. [19–21].
25
See Ref. [22].
26
This principle is examined in further detail in the next section and in Chap. 4.
27
See Ref. [23].
28
E.g. Article 24 of the Qualification Directive; see also the Long-term Residents Directive
which in the amended version extends long-term resident status to refugees and beneficiaries of
subsidiary protection on a similar basis as other third country nationals legally living in the EU
for more than five years. In particular, they will enjoy a number of rights such as the right to free
movement within the EU, including the right to become a resident in another EU Member State,
and under certain conditions, equality of treatment in relation to education, access to the labour
market and social security benefits, see Council Directive 2003/109/EC of 25 November 2003
the limited application ratione personae of the Qualification Directive with the
consequence that those who fall within the scope of the absolute prohibition of
refoulement in Article 3 ECHR may not qualify for asylum under EU asylum law.
This is not to say that substantial progress has not been achieved in many respects.
However, as noted by Goodwin-Gill, there is a strong disjuncture between what is
still often asserted to be a matter of sovereign state prerogative, and what is, as a
matter of fact and law, structured and constrained by fundamental principles of
protection.29
These fissures and fractures underlying the adoption and implementation of
asylum law and policy have made the task of harmonization very difficult for the
EU, at a time when the legitimacy of EU action is vigorously called into question
and the ‘stock exchange listings of the idea of Europe are down.’30 The contro-
versies surrounding the ‘‘ownership’’ of the policy priority-setting and legislative
planning of the Stockholm Programme is a case in point.31 The transition from the
‘‘classical’’ setting of the JHA institutional framework centred in the Council of
Ministers to the extant post-Lisbon pluralist institutional landscape has not been a
smooth one. The actual contours and implementation of the Stockholm Pro-
gramme were subject to heated discussions between the Council and the Com-
mission. Soon after its adoption, an Action Plan implementing the Stockholm
Programme was published,32 which was subject to severe criticism by the Council
as it was deemed to go beyond the policy priorities envisaged by the Council’s
Stockholm Programme rather than using the latter as a frame of reference for
programming.33 The said Action Plan constitutes a departure from securitization
towards the protection of fundamental rights and the values of human dignity and
solidarity, providing a principled legislative agenda similar to the 1999 Tampere
Programme.
As regards secondary legislation, the Qualification Directive well-illustrates the
difficulties in reaching full harmonization in the field of asylum. It is the result of a
long negotiation process among the Member States who have come to agree on a
minimum common interpretation of the notions of refugee and persons in need of
subsidiary protection. The Commission’s proposals and the European Parliament’s
amendments in the consultation process stressed the need to ensure protection to
(Footnote 28 continued)
concerning the status of third-country nationals who are long-term residents, OJ L 16/44, 23
January 2004, as amended by the Directive 2011/51/EU of the European Parliament and of the
Council of 11 May 2011 amending Council Directive 2003/109/EC to extend its scope to ben-
eficiaries of international protection, OJ 132/1, 19 May 2011.
29
See Ref. [24], at p. 33.
30
See Ref. [25].
31
See Ref. [26].
32
See Ref. [27].
33
See Ref. [28].
asylum-seekers34 whereas the Council focused largely on the prevention of abuse

and even the limitation of asylum. The end result has been compromise also in
view of the then unanimity requirement within the Council with a vague and
unclear wording of several provisions such as the one contained in Article 15(c) of
the Qualification Directive. The ECJ has been called to clarify the meaning and
relationship of the two terms ‘‘individual threat’’ and ‘‘indiscriminate violence’’ as
they appeared to be in conflict with one another.35 The ruling of the Court not only
clarified the relationship between the two notions but also strengthened the pro-
tective function of EU asylum law by providing that the interpretation given
therein was compatible with the ECtHR case-law on Article 3 ECHR.
After having unravelled some of the most significant tensions underlying the
process of Europeanization in the field of asylum—to a great extent centred around
the essentially contested nature of the concept of sovereignty- the examination
proceeds to an evaluation of key legal notions and principles in the international
refugee regime and developments in the setting up of a fully-fledged CEAS. In so
doing, it will seek to provide a preliminary assessment of the extent to which
measures adopted within the EU meet the purported goals established at European
level and whether they may be conflated with an EU asylum policy and, in this
context, the standard of protection afforded to asylum-seekers.36 What this first
analysis will show is that CEAS is influencing and moulding the meaning of
sovereignty in unexpected ways and, changing the way in which governance
operates in respect of individuals.37
2.1.1 Refugee Protection and International Refugee Law

in the EU
The legal duty of EU Member States to offer protection to refugees can be found in
a combination of refugee, human rights and humanitarian law. The Geneva
34
See European Commission, Proposal for a Council Directive on minimum standards for the
qualification and status of third country nationals and stateless persons as refugees or as persons
who otherwise need international protection, COM (2001) 510 final; European Parliament,
Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs, Committee Report on
the proposal for a Council Directive on minimum standards for the qualification and status of
third country nationals and stateless persons as refugees or as persons who otherwise need
international protection, COM (2001) 510—C5-0573/2001—2001/0207 (CNS)), PE 319.971/A5-
0333/2002.
35
See Case C-465/07, Elgafaji v Staatssecretaris van Justitie, [2009] ECR I-921, examined
further below in Chap. 4.
36
The critical appraisal will comprise two types of goals: procedural goals, namely, those
concerning ‘‘who’’ adopts/implements and ‘‘how’’ asylum policies are or should be adopted and
implemented; and, substantive goals concerning what rights constitute the ‘‘public good’’ to
which asylum-seekers have access.
37
See Ref. [29].
Convention constitutes the centrepiece of international refugee protection38 by

providing a definition of refugee39 and the most comprehensive codification of
refugees’ rights at international level. The Convention is both a status and rights-
based instrument and is underpinned by a number of fundamental principles, such
as non-discrimination (Article 3) and non-refoulement (Article 33). Further, it lays
down basic minimum standards for the treatment of refugees, without prejudice to
states granting more favourable treatment. Article 78 TFEU provides that the
CEAS must be in accordance with this Convention and ‘other relevant Treaties.’40
Under this provision, International treaties are those that are binding upon all
Member States, unless they qualify wholly or in part as customary international
law binding upon Member States irrespective of a ratification of the treaty.41
Member States remain liable under international human rights law, if they fail to
safeguard against refoulement. This principle is buttressed by general rules of
international law such as the principle of good faith.42 Moreover, as signatories of
the Vienna Convention on the Law of Treaties (the Vienna Convention) Member
States are bound by the rule of pacta sunt servanda which requires them to abide
by all international agreements to which they are party.43 This means that Member
States’ commitments to international law have primacy over any EU-level legis-
lation. Furthermore, the EU is obliged not to impede Member States’ obligations
38
Other important international legal instruments for the protection of asylum-seekers and
refugees are those human rights treaties belonging to the United Nations (UN) family to which
most European countries are parties to, namely, the 1966 International Covenant on Civil and
Political Rights (ICCPR) (which provides similar protection guarantees as the ECHR), the 1948
Universal Declaration of Human Rights (UDHR), the 1979 Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW), the 1965 Convention on the Elimination of
All Forms of Racial Discrimination (CERD), the 1984 United Nations Convention against
Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), the 1989
Convention on the Rights of the Child (CRC) and the 2006 Convention on the Rights of Persons
with Disabilities (CRPD).
39
See Article 1A.
40
Such treaties are not explicitly mentioned in Article 78 TFEU. However, there is general
consensus that they may comprise the UN Convention on the Rights of the Child of 1989, the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of
10 December 1984 and the International Covenant on Civil and Political Rights of 16 January
1966.
41
See Ref. [30], at p. 10.
42
The General Rule of Interpretation in Article 31(1) of the Vienna Convention states that
treaties ‘shall be interpreted in good faith in accordance with the ordinary meaning given to the
terms of the treaty in their context and in light of its object and purpose.’ See Ref. [5], see
footnote 1, at p. 390.
43
See Article 26 of the Vienna Convention on the Law of Treaties (1155 UNTS 331; entered
into force 27 January 1980), which provides that: ‘Pacta sunt servanda- Every treaty in force is
binding upon the parties to it and must be performed by them in good faith.’
under international law.44 Compliance with EU law, therefore, may be said to be

secondary to the fulfilment of international obligations. Consequently, the EU and
its Member States remain legally bound to comply with the Refugee Convention,
as well as the other international human rights treaties to which they are party,
prior to any other instrument which is to be applied at EU level. Indeed, the
implementation of EU Directives cannot be equated to automatic compliance with
Member States’ international obligations.45 In addition, the Refugee Convention
and the 1967 Protocol are a source of general principles of EU law, as they have
been ratified by all Member States.46 The Geneva Convention does not contain any
provisions on procedures nor does it establish an individual right to be granted
asylum. However, under the principle of good faith state parties to the Convention
are required to institute a formal procedure which allows for a fair and effective
procedure in order to determine who is entitled to the guarantees of the Con-
vention. This view has found general consensus, particularly with regard to the
principle of non-refoulement in Article 33 of the Geneva Convention. Under
international law, states are responsible for examining asylum claims made in their
jurisdiction.47 According to Goodwin-Gill and McAdam, asylum-seekers have a
right to full protection until their refugee status has been determined48 and failure
to recognise genuine refugees as such is a violation of international law.49 At the
same time—in the absence of procedural rules- the terms ‘‘fair’’ and ‘‘efficient’’ are
subject to discretion and a wide margin of appreciation which has meant that for
years contracting states have used different techniques and concepts for the
examination of claims for international protection. Hence, before the adoption of
minimum standards it was within Member States’ full discretion to establish
procedural rules on a proper asylum procedure.50
44
Article 27 of the Vienna Convention provides that international law has primacy over
domestic law: ‘a state may not invoke the provisions of its internal law as justification for its
failure to perform a treaty.’
45
See Ref. [30], see footnote 41, at p. 12.
46
See Ref. [31].
47
See Article 2(1) of the ICCPR which provides that rights are applicable to ‘all individuals
within [a State’s] territory and subject to its jurisdiction.’
48
49
Ibidem, at p. 412.
50
In the past various international organizations and non-governmental agencies have developed
general principles on asylum procedures, e.g. see Ref. [32–34]. However, such recommendations
whilst of high value do not constitute an authoritative source of interpretation.
2.1.2 The Treaty of Amsterdam, EU Competence

and Asylum
The ToA had a major if not seismic impact on the solipsistic existence of the
Member States and the lives of their citizens. It appeared on the EU scene as a
Deus ex Machina sanctioning an almost irreversible move51 to shared competence
and qualified majority voting (QMV) and signalling a rupture and break from the
past in many key areas previously the jealous preserve of the Member States.52
The ToA ‘did for the Union in the field of migration what Maastricht had done for
Europe, moving the asylum and refugee agenda from the Third pillar, and state-to-
state decision-making, to the First Pillar, introducing Community legislative
competence in the field.’53 The partial Communitarization of the then Third Pillar
paved the way to new important dynamics in the field of justice and home affairs
(JHA). There was a general, albeit reluctant, acknowledgment that many common
problems had a global as well as a regional dimension to them with all the
difficulties and pitfalls that this two-sided dimension entails, asylum being a case
in point.54
In the field of asylum the transfer of legislative competence to the EU55 paved
the way to a process of Europeanization of Member States’ practices and legis-
lation56 initiating what Staffans defines as the ‘process of voluntary internation-
alization of asylum law.’57 The use of the term ‘‘voluntary’’ could be easily
dismissed as a contradiction in terms in the context of EU law or, more simply, as
being either out of place or misplaced. As the EU has evolved into a sui generis
international legal and political entity ‘‘voluntary’’ seems to have changed
alongside it acquiring a distinct meaning in comparison with that of autonomy and
51
With the term ‘‘irreversible’’ I am referring to the fact that, despite some rebellious and die
hard Member States and notwithstanding the existence of differentiated integration mechanisms,
the EU will survive its very own self only through a departure from atomistic systems of
regulation to a pluralistic one largely based on shared competence.
52
Kostakopoulou argues that the ToA changes in the field of JHA marked the beginning of a
third phase in the development of a European immigration policy and constituted a break in the
intergovernmental methodology. By extension, the same consideration can be made in relation to
EU asylum measures; see Ref. [35], at 182.
53
See Ref. [36], at p. 30.
54
What is being said is not meant to underestimate the coming into existence of other forms of
competence which were given a more formal recognition around the same time such as, for
example, coordination (see e.g. Articles 5 and 6 TFEU). It is however the author’s view that
shared competence constitutes a durable and thus preferable form of competence if the EU is to
carry on existing in the foreseeable future.
55
For an account of the historical background of the legislative and policy developments in
asylum, see Ref. [37–45], in this chapter and Chap. 5.
56
It should be noted that Title IV EC inserted by ToA did not establish ‘an area of freedom,
security and justice’, but rather introduced mechanisms and a timetable for the progressive
establishment of such an area.
57
See Ref. [46].
independence.58 Self-will is a state’s motive force: it impels a state from within,

whereas abeyance to a supranational body of law compels a state from without.
Clearly, in the EU context ‘‘voluntary’’ cannot be equated to a state’s self-will as,
arguably, there is a strong degree of coerciveness embedded in EU law. The
foregoing explains, on the one side, why ‘‘voluntary’’ within the EU system does
not bode well with the ‘‘classical’’ notion of state sovereignty59 and, on the other,
the tensions underlying EU asylum law and policy measures.
In 1999 a programme of full scale harmonization was put in place, encom-
passing legislative, policy and judicial procedural harmonization.60 The Tampere
Conclusions firmly included the creation of a ‘common European asylum sys-
tem’—and linked to that a common asylum procedure (CEAP), a uniform status
for recognized refugees and persons benefiting from subsidiary protection- in the
EU top agenda based on the full and inclusive application of the Geneva Con-
vention.61 In so doing, the European Council emphasized the importance the
Union and Member States attach to absolute respect of the right to seek asylum.
The common EU asylum regime was to be a constituent part of the newly created
AFSJ. Harmonized policies would enable the EU to become a ‘‘single asylum
space’’ with the broader aim of ensuring a consistent asylum process and equiv-
alent levels of protection throughout the Union. According to the Tampere Con-
clusions the future CEAS should include, in the short term, a clear and workable
determination of the state responsible for the examination of an asylum applica-
tion, common standards for a fair and efficient asylum procedure, common min-
imum conditions of reception of asylum-seekers, and the approximation of rules
on the recognition and content of the refugee status. It should also be completed
with measures on subsidiary forms of protection offering an appropriate status to
any person in need of such protection.
58
Beyond any philosophical delving on the meaning of ‘‘voluntary’’—certainly not the intention
here- it should be noted that EU asylum law exemplifies the extant tensions in many areas of EU
law, namely the inherent ambiguity between what was initially designed to be a body of law
premised largely upon state voluntarism and what has ultimately become a supranational system
of law. From this perspective, the tensions within EU asylum law are arguably innate within a
state-based system of law.
59
Classical approaches espouse a monistic conception of sovereignty, which is seen as a key
organizing principle and source of legitimation for state action. E.g. [47–50]. In the context of
international law, De Vattel, developed the theory of a voluntary law of nations and its necessary
corollary of states’ self-interestedness, which was grounded in the notion of the state as a
compound moral person that had a duty under natural law to perfect itself. According to this
theory, states committed themselves to international agreements with the proviso that these
pledges were only binding insofar as states continued to view them as such. For de Vattel a state
had an understanding and a will (the latter intertwined and united by the pacts of a number of
men, and thus the will of all), of which it made use for the conduct of its affairs, and was capable
of obligations and rights. See Ref. [51].
60
See Refs. [52, 53]. For an analysis of the measures and instruments employed in the context of
the Europeanization of asylum, see Ref. [54].
61
See Presidency Conclusions of the Tampere European Council 15–16 October 1999, pp. 3–4;
see also Ref. [55].
The goals included in the Tampere Conclusions constitute in the first place
meta-systemic principles in that they lay out Fullerian rule of law requirements62
which must necessarily underscore also a second category of meta-principles,63
namely, meta-constitutional principles which are set out to help identifying the
constitutive principles, values and procedures to be employed at both European
and domestic levels as well as defining the scope and objectives of the constitutive
procedures through substantive criteria of justice and rights.
Various reasons explain the decision by the Member States to go ahead with the
creation of CEAS. Above all, the conviction that a well-functioning CEAS con-
tributes to improving the image and perception of the EU on the international
plane, particularly vis-à-vis the protection of human rights. A fully-fledged CEAS
with a common procedure and a uniform asylum status would also significantly
reduce secondary movements of asylum-seekers across the EU64 and consequently
reduce the costs deriving from sending and receiving individuals between Member
States.65 Linked to this, a centralized system with harmonized standards and
procedures would alleviate Member States from carrying out some of the more
complex and difficult administrative tasks such as for example fact-finding and
retrieving information from countries of origin. The CEAP is yet to be established
although it is envisaged that it will encompass common procedures, joint pro-
cessing and shared technical support-functions, such as databases and sources of
country of origin-information. Additionally, persons granted asylum status through
the CEAP will receive the same benefits and rights throughout the union, as part of
the uniform status that is part of the CEAS.
However, as Vedsted-Hansen66 aptly observes, while the general spirit of the
Tampere Conclusions could be considered quite ambitious and protection-ori-
ented, the inclusion of the ‘‘fair and efficient’’ standard reflects a balance between
the individual and Member States’ interests. In addition, ‘‘fairness’’ is a sufficiently
flexible notion which can be moulded to meet, where necessary, the potentially
strong demand for efficiency.67 The European Council also agreed that this process
of harmonization would be divided into two main phases: a first phase (ending in
62
See Ref. [56].
63
In legal theory the term ‘meta-principle’ refers to an umbrella principle from which other
principles derive as corollaries or as natural consequences; see e.g. Ref. [57, 58].
64
The Dublin Regulation allocating responsibility for the examination of asylum applications
presupposes that all EU Member States comply with certain standards of protection in order to
avoid arbitrary differences of treatment, and to reduce the risk of secondary movements between
Member States, see Council Regulation No. 343/2003 of 18 February 2003. Similarly, this
objective has been expressly stated in the Preambles of all the first generation asylum Directives,
e.g. see Recital 9 of the Temporary Protection Directive (Directive 2001/55 of 20 July 2001),
Recital 8 of the Reception Conditions Directive (Directive 2003/9 of 27 January 2003), Recital 7
of the Qualification Directive (Directive 2004/83 of 29 April 2004) and Recital 6 of the original
Asylum Procedures Directive (Directive 2005/85 of 1 December 2005).
65
See Ref. [59].
66
See Ref. [60], at p. 255.
67
Idem.
2004) involving the adoption of harmonizing Directives and Regulations on the

basis of common minimum standards,68 and a second phase (ending in 2010),
focusing on the practical development and integration of asylum procedures in the
EU with a view to establishing a single asylum procedure and a uniform status of
the persons granted protection throughout the Union. The deadlines for completing
these stages of the CEAS were not met because of the delay in reaching an
agreement among Member States. Two multiannual programmes setting out the
policy priorities in more detail were adopted in subsequent years: the 2004 Hague
Programme, which prompted the institutions to complete the first set of asylum
legislation and provided for the establishment of a common asylum procedure69 as
a priority objective, and the 2009 Stockholm multiannual programme, which
called for the completion of a truly common CEAS.
A comparison between the goals set out by the Hague Programme and the
Tampere Conclusions reveals some significant differences as regards the legal
protection of individuals.70 In particular, the Hague Programme71 in referring to a
‘‘European Area for Justice,’’ focused on civil and criminal law whereas in the
Tampere conclusions the principle ‘justice accessible to all’ was explicitly
extended to the field of migration law and included persons both in and outside the
EU territory. In addition, the Hague Programme focused primarily on the pro-
tection of the rights and freedoms of citizens without specifying whether this
included EU citizens only or extended also to third country nationals (TCNs), and
if so, whether it included legally resident TCNs, or also irregular migrants. The
2009 Stockholm programme72 gave emphasis first of all to the procedural rights of
EU citizens, particularly since the changes introduced by the ToL. However, it also
explicitly referred to the interests and needs of the citizens and ‘other persons for
whom the EU has a responsibility.’ Interestingly, the European Council already
acknowledged at the time that the key challenge would be to balance the need to
ensure the respect for fundamental rights and freedoms and integrity with the
objective of guaranteeing security in Europe. Under the heading of ‘‘A Europe of
law and justice,’’ it was explicitly stated that priority should be given to mecha-
nisms ‘that facilitate access to justice, so that people can enforce their rights
68
The fact that the Asylum Procedures Directive was only adopted beyond the May 2004
deadline because of strong disagreement on various controversial issues confirms what has been
said above about the great difficulty in achieving harmonization in the field of asylum, see
Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member
States for granting and withdrawing refugee status, OJ L 326/13.
69
The reference to a common asylum procedure in the 2004 Hague Programme in many aspects
recalled the ‘‘single procedure’’ as defined by the Commission during the first period of
implementation of the implementation of the Tampere Programme, see European Commission
Communication, Towards a Common Asylum Procedure and a Uniform Status, Valid Throughout
the Union COM (2000) 755 final, pp. 8–9.
70
See Ref. [61], at p. 378.
71
See Ref. [62].
72
See Ref. [63].
throughout the Union.’ The language of justice and human rights used in the
Stockholm Programme, therefore, very much resembles that used in the Tampere
Conclusions. In addition, it recognized that there were still significant differences
between national provisions and their application, and that a higher degree of
harmonization would be achieved through the establishment of the CEAS which
remained a key policy objective. Moreover, it not only re-emphasized the full and
inclusive application of the Geneva Convention but it also proposed that the EU
‘should seek accession to the 1951 Geneva Convention and its 1967 Protocol.’ The
latter would have the benefit of establishing a direct link between the Union
institutions and the international refugee protection system, as well as strength-
ening institutional ties between the UNHCR and the EU ensuring compliance with
the Convention at all levels of EU intervention in asylum.73
However, the Stockholm Programme did not provide specific policy directions
for the second generation of EU asylum Directives and only held that both
common rules and a better and more coherent application of them should prevent
or reduce secondary movements within the EU and increase mutual trust between
Member States. The Council and the European Parliament were called to adopt
legislation to help establish a common asylum procedure and a uniform status in
accordance with Article 78 TFEU by 2012.74 Apart from the long-term objective
of common asylum procedures across the EU though, no specific guidance was
provided in relation to the nature and degree of harmonization to be achieved.
During the first phase (1999–2005) of the establishment of the CEAS a series of
important legislative measures harmonizing common minimum standards in the
area of asylum were adopted such as the Directive on Temporary Protection,
Directive on Reception Conditions for asylum-seekers, the Directive on the
Qualification for becoming a refugee or a beneficiary of subsidiary protection
status, the Asylum Procedure Directive, the Dublin Regulation II and the Returns
Directive.75 The first phase instruments were unanimously agreed by the Council
and the European Parliament’s role was limited to consultation. The Directives as
such—because of the then unanimity voting procedure within the Council of
73
This is discussed in further detail in Chap. 5.
74
See also Refs. [64, 65].
75
See Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving
temporary protection in the event of a mass influx of displaced persons and on measures
promoting a balance of efforts between Member States in receiving such persons and bearing the
consequences thereof, OJ L 212/12, 7 August 2001; Council Directive 2004/83/EC of 29 April
2004 on minimum standards for the qualification and status of third country nationals or stateless
persons as refugees or as persons who otherwise need international protection and the content of
the protection granted, OJ L 304/12, 30 September 2004; Council Directive 2005/85/EC of 1
December 2005 on minimum standards on procedures in Member States for granting and
withdrawing refugee status, OJ L 326/, 13Dec. 2005; Council Regulation No 343/2003 of 18
February 2003 establishing the criteria and mechanisms for determining the Member State
responsible for examining an asylum application lodged in one of the Member States by a third-
country national, OJ L 50/1, 25 Feb. 2003; Council Directive 2008/115/EC on common standards
and procedures for illegally staying third country nationals, OJ L 348/98 of 16 December 2008.
Ministers- constitute a true expression of Member States’ concerns and objectives

centred around securitization, namely, to find the ‘‘lowest common denominator’’
with respect to the standards of protection rather than the protection of refugees
per se.76 The unanimity requirement seriously impaired the decision-making
process facilitating policies of deterrence.77 It allowed Member States to continue
to be the dominant actors in policy-making and ensured that harmonization would
remain conceived within a restrictive logic of refugee protection.78 Since the
1980s, policies of deflection have been directed at all migrants with no distinction
between immigrants and forced migrants and asylum-seekers have become a
synonym for all different forms of migrants.79 This practice has substantially
weakened the ideological value of asylum and ultimately threatens to undermine
the global institution of refugee protection.80
During the second phase of the CEAS the European Commission reviewed
existing asylum legislation and submitted various recast proposals.81 These pro-
posals aimed at introducing a significant shift in the nature of legislation by way of
introducing mandatory obligations for the Member States together with the abo-
lition of opt-out clauses and a full harmonization of both procedures and standards
which were also in line with the changes made by the Lisbon Treaty.82 As will be
shown in the next Chapter, this rationale has been significantly watered down and
optional harmonization characterizes all the recast instruments.
Article 78 TFEU requires compliance with the principle of non-refoulement in
the creation of the CEAS. Arguably, this obligation may be said to be stronger than
that contained in the 1951 Convention in order to ensure that any act that prevents
access to European territories and does not allow them to obtain the necessary
protection is prohibited.83 Moreover, a new agency, the European Asylum Support
Office (EASO),84 has been set up in 2010 as part of the EU’s effort to develop a
76
See Ref. [66]; see also Ref. [67]
77
See Ref. [68].
78
See Ref. [69], at 38.
79
See Ref. [70, 71].
80
See Ref. [72].
81
A first package of proposals included: Ref. [73–75]. A second package included: Ref. [76, 77].
See Ref. [78], for detailed analysis and commentary. The recast process is largely the focus of
Chap. 3 of this volume.
82
See European Commission Communication to the European Parliament and the Council, An
area of Freedom, Security and Justice serving the citizen, COM (2009) 262 final, 10 June 2009.
83
E.g., see Ref. [79], at 695; for a view according to which restrictive national measures are
likely to be countered by arguments founded on the peremptory norm of non-refoulement see Ref.
[80, 81].
84
See Ref. [82]. The agency, which is based in Malta and became fully operational in June 2011,
plays a key role in the concrete development of CEAS and asylum protection. It has been
established with the aim of enhancing practical cooperation on asylum matters. In particular,
EASO acts as a centre of expertise on asylum and also provides support to Member States whose
asylum and reception systems are under particular pressure. First, it provides training on asylum
procedures and processes, such as assistance in screening by asylum support teams, development
truly comprehensive asylum policy and, specifically, to improve the practical

cooperation between national authorities involved in asylum operations to better
implement EU asylum measures. The EASO Regulation incorporates some key
mechanisms for mainstreaming fundamental rights considerations into the design
and operation of the agency. First, EASO’s Regulation makes an explicit
acknowledgement of the EU Charter.85 It is also noteworthy that the European
Parliament is involved in the appointment of the Executive Director of the agency.
Article 30(1) of the EASO Regulation states that before appointment by the
management board, the candidate selected shall be invited to make a statement
before the European Parliament. The Parliament then delivers an opinion on the
candidate and the management board is required to inform the Parliament of the
manner in which that opinion is taken into account. Secondly, and significantly,
the EASO Regulation allocates a specific role to the UNHCR.86 The agency has to
act in close cooperation with the UNHCR as well as other relevant international
organizations. In particular, the UNHCR sits as a non-voting member of the
management board, participates in the expert working groups and is a member of
the EASO Consultative Forum. Further, EASO is also mandated to cooperate with
the Fundamental Rights Agency (FRA). Notwithstanding the integration of
mechanisms aimed at safeguarding fundamental rights, some concerns have been
raised in relation to EASO’s mandate and regulatory tasks and the implications vis-
à-vis fundamental rights.87 In Levy’s view, EASO follows in the tradition of
supranational intergovernmentalism and he is doubtful as to whether this agency
will be able to effectively ensure the implementation or strengthening of asylum
capacity building.88 More specifically, concerns have been raised in relation to
EASO’s creation and dissemination of country of origin information and the
potential implications this activity could have on the rights to asylum and pro-
tection against collective expulsion and refoulement as per Articles 18 and 19 of
the EU Charter.89 In addition, AI has highlighted, in view of EASO’s future
working agreements with third countries, the potential conflict between
of technical documents, provision of country of origin information reports and training of
national experts, including members of the judiciary. It can also provide tailor-made (technical)
assistance, such as capacity building and relocation, as well as emergency support in the form of
solidarity to help repair or rebuild asylum or reception systems (e.g. Article 80 TFEU). In the
longer-term the agency could have a significant influence on Member States’ asylum measures,
including (indirectly) individual asylum decisions.
85
See Recital 31, which provides that: ‘This Regulation respects fundamental rights and
observes the principles recognised in particular by the Charter of Fundamental Rights of the
European Union and should be applied in accordance with the right to asylum recognised in
Article 18 of the Charter.’
86
See Recitals 10, 17, Articles 2(5), 5, 9(1), 12(2), 25(4), 27(1), 29(2) subpara. 3, 32(2), 50,
51(3) subpara. 2.
87
See Ref. [83].
88
See Ref. [84], at 116.
89
maintaining good working relations with the countries from which the asylum-
seekers originate, and providing credible and impartial country-of-origin infor-
mation.90 Appropriate safeguards must be in place to ensure that country of origin
information is accurate, based on independent sources of expertise and free from
political influence. In addition, safeguards must ensure that country of origin
information does not jeopardise or substitute fair procedures by national authori-
ties in the determination of asylum procedures in accordance with EU law.
More generally, there is a fear that should the EASO become an increasingly
migration control agency it may end up undermining some the precepts of the rule
of law. These are not new concerns. Previous studies have indicated that migration
control agencies and law and order officials favour the vertical dimension of
policymaking, as it allows them to sidestep the judicial constraints of the domestic
level, and at the same time, avoid input from EU institutions.91 The dominance of
security experts has led to the strengthening of ‘executive authority at the expense
of legislative or judicial oversight,’ which, in turn, has made the agenda of security
and control easier to advance.92
In spite of some progress, the overall picture looks gloomy for asylum-seekers
in the EU. Disappointingly, the creation of a supranational asylum regime seems to
be leading to a significant erosion of refugees’ rights in the EU.93 Or to put it
differently, in spite of institutional changes in the EU, asylum policymaking has
not been fully communitarized; instead the policy process has been characterized
by a hybrid form of intergovernmental supranationalism, which has facilitated the
development of securitized asylum policies.94 Despite officially proclaimed
commitments to the protection of asylum-seekers, the harmonization of asylum
policies has lowered protection standards in many Member States.95 Moreover, the
adoption of the asylum Directives has been coupled with a significant increase in
admission controls at the external frontier of the Union, as well as stringent visa
requirements and travel restrictions.96 These external border controls prevent
asylum-seekers from gaining access to the EU’s asylum system in order to claim
international protection. Arguably, the EU’s inability to provide human guarantees
for refugees is a significant challenge to its global role in the field of human rights.
90
See Ref. [85].
91
See Ref. [86], at p. 164.
92
See Ref. [87], at p. 203.
93
For example, the Council has completely rejected the proposal to establish a mechanism for
the possible suspension of the Dublin rules in cases of Member State’s deficiencies and thus
suspension of transfers, agreeing instead to insert rules on an ‘early warning mechanism’ which in
practice would not affect the application of the Regulation; this is examined further below, infra,
Chap. 3.
94
See Ref. [84], see footnote 88, at 108.
95
See Nicholson, see footnote 77, at p. 525.
96
See e.g. Refs. [88, 89] for academic commentary see Ref. [90].
2.1.3 Key Changes to the Legal Framework since the Treaty

of Lisbon
The ToL was the ‘by product of the process of ‘‘structured reflection’’ on the future
of Europe that followed the rejection of the Constitutional Treaty.’97 One of the
most significant changes introduced by this Treaty has been the unification of the
institutional framework of the different policy components of the AFSJ under new
Title V with QMV in the Council and the ordinary legislative procedure becoming
the norm and a full use of ‘‘Community’’ legislative acts giving rise to justiciable
rights before national courts.98 The abandonment of the requirement of unanimity
within the area of asylum and immigration measures99 is aimed at facilitating the
recast of the asylum Directives. There has also been a shift in language from
the EC Treaty to the TFEU from ‘‘qualification’’ for international protection under
the EC Treaty (which lead to the Qualification Directive) to ‘‘status of asylum.’’
The change better reflects the wording of the Refugee Convention and it indicates
that EU asylum law is coextensive with international refugee law.100 However,
strong national interests remain and are reflected in Member States’ negotiation
positions.101 This is exemplified by the difficulty in adopting the recast of most
asylum Directives.102 The formal change of legislative competences and proce-
dures to date have not been able to ensure more effective harmonization and better
compliance with the obligations under international human rights and refugee law
and they have therefore made little difference in reality.103
One of the key innovative features introduced by the ToL includes the full
jurisdiction of the ECJ. In particular, the ToL repealed former Article 68 EC,
which limited the right to request preliminary rulings to courts of last instance—
meaning that all national courts, and not merely the highest judicial bodies, would
be able to make requests in relation to asylum, immigration and visa issues. The
number of preliminary rulings that have been requested since has greatly increased
as well as the variety in the range and subject matter of questions put forward to
97
See Ref. [91], at 154.
98
Idem.
99
It was former Article 67(5) EC which introduced QMV in order to enable the amendment of
the first generation of asylum Directives.
100
See Ref. [92].
101
The European Parliament and the Council managed to agree on the revision of the
Qualification Directive, which was then officially adopted in November 2011. However, the
Council had difficulty agreeing on how to revise the recast of the other Directives with the result
that the Commission had to amend proposals for the Directives on reception conditions and
asylum procedures, in order to restart discussions.
102
See further in Chap. 3.
103
The amended proposals reproduced in the adopted Recast Directives contain mostly cosmetic
changes and do not require Member States to raise their standards very much. Arguably, the
second phase of the CEAS resembles the first phase; see Ref. [93]; see Refs. [94, 95].
the Court.104 Already under the circumscribed Article 68 EC procedure formerly

in place, various national courts of final instance were making references to the
ECJ.105 The preliminary rulings issued so far have considerably assisted national
courts and tribunals in applying EU asylum law.106 At present, there are consid-
erable divergences between Member States as to the interpretation and imple-
mentation of EU asylum law.107 For example, there has been disagreement
between some national courts in relation to Article 15(c) of the Qualification
Directive108 as to the role of international humanitarian law as being a valid legal
tool for interpreting key terms such as that of ‘‘indiscriminate violence.’’ In par-
ticular, in QD & AH (Iraq) the English Court of Appeal held that international
humanitarian law cannot to be used as an interpretive tool, whereas the German
Supreme Administrative Court was of the opposite view and expressly disagreed
with the English Court of Appeal.109
One of the main advantages of references in the field of asylum and immi-
gration is that preliminary rulings provide important insights into what is still a
new area of EU competence. Making a reference also has the advantage of
enabling the Court to receive observations from the Union Institutions and the
Member States (including domestic courts), facilitating engagement at various
levels of decision and policy making within the Union. Moreover, while there may
be concerns of a ‘‘European’’ approach rather than an ‘‘International’’ approach to
the interpretation of the Refugee Convention,110 there is some evidence from the
ECJ asylum case-law suggesting that its decisions may have a progressive effect
from the perspective of asylum-seekers’ human rights. For example, in Bolbol the
ECJ followed the Opinion of AG Sharpston who adopted a more generous inter-
pretation of Article 1D of the Geneva Convention concerning the status of refugees
for Palestinians (which Article 12(1)(a) of the Qualification Directive refers to)
than that provided by the UNHCR.
At a more practical level, concerns have been raised in relation to the delays
(and costs) that can be caused by making a reference to pending cases before a
104
See Ref. [96].
105
See e.g. Case C-465/07, Elgafaji and Elgafaji [2009] ECR I-921; Cases C-175-179/08
Abdulla and Others, judgment of 2 March 2010, nyr; and C-31/09 Bolbol [2010] ECR I-5539.
106
See e.g. the Czech Republic case, Supreme Administrative Court case of March 13, 2009, no
5 Azs 28: 2008, the UK case of QD & AH (Iraq) (Appellants) v. Secretary of State for the Home
Department (Respondent), [2009] EWCA Civ 620; the German case of Complainant v
Respondent, BVerwG 10 C 4.09 VGH 8 A 611/08.A, judgment of the Federal Administrative
Court, 27 April 2010. All three decisions build on the Elgafaji ruling.
107
See Ref. [97]; see also Ref. [98].
108
See Council Directive 2004/83/EC as amended by Directive 2011/95/EU.
109
See Judgment of the Federal Administrative Court (Bundesverwaltungsgericht) BVerwG 10
C 4.09 VGH 8 A 611/08.A, 27 April 2010, infra paras 22–34.
110
It is noteworthy that the Statute of the ECJ does not permit third-party intervention despite
the fact that the UNHCR for instance is considered as providing ‘‘valuable guidance’’ in the
application and implementation of asylum law, see Recital 22 of the Recast Qualification
Directive.
domestic court.111 To that end an urgent procedure (PPU) was introduced in 2008
designed to reduce the delivery of a preliminary ruling in the AFSJ and thus
applicable only in the areas covered by Title V of Part Three of the TFEU.112 It is
applied where the answer to the question raised is decisive as to the assessment of
that person’s legal situation or where the identity of the court having jurisdiction
under EU law depends on the answer to the question referred for a preliminary
ruling. To date, the ECJ has been dealing with a modest number of references in
this area on the basis of the PPU.113 Some concerns have been raised by several
distinguished academics in relation to this fast-track procedure and, in particular,
whether the Court is able to combine speed with an effective delivery of justice.114
Among others, the lack of transparency of the overall decision-making process115
exemplified by the brevity of the Court’s rulings which do not seem to provide any
discussion of the arguments of the parties and no reference to what was argued at
the hearing, the lack of explanation as to why a PPU request has been rejected116
and the non-publication of the AG’s prise de position which is given orally but in
camera.117 The Rules of Procedure of the ECJ therefore have been amended.118
The Preamble of the new Rules of Procedure explains the reasons for their
111
By way of example, the Bolbol case took some 17 months from the reference in January 2009
to the judgment of the Court in June 2010. Similarly, in the Abdulla case the order of reference
submitted by the German court made in early 2008 did not receive a ruling by the ECJ until
2 March 2010.
112
The PPU procedure is governed by Article 23a of Protocol (No 3) on the Statute of the Court
of Justice of the European Union (OJEU 2008 C 115, p. 210) and Articles 108–109 of the Rules
of Procedure of the Court of Justice.
113
In the field of asylum and border control, see e.g. Case C-357/09 PPU Kadzoev, Judgment of
the Court (Grand Chamber) of 30 November 2009, nyr, and Case C-61/11 PPU Hassen El Dridi
alias Soufi Karim, Judgment of the Court (First Chamber) of 28 April 2011, nyr, both concerning
the Returns Directive (Directive 2008/115/EC), Case C-278/12 PPU Atiqullah Adil v Minister
voor Immigratie, Integratie en Asiel Judgment of the Court (Second Chamber) of 19 July 2012,
nyr, concerning the Schengen Borders Code. Judgment of the Court (Second Chamber) of 19 July
2012, nyr, concerning the Schengen Borders Code.
114
115
This lack of transparency is in stark contrast with the Court’s emphasis on openness as
pivotal for ensuring greater legitimacy of the Union Institutions vis-à-vis EU citizens, see Joined
Cases C-39/05 P and C-52/05 P, Kingdom of Sweden and Maurizio Turco v Council of the
European Union [2008] ECR I-4723.
116
Giving reasons for rejecting a PPU request would provide valuable guidance to other
referring courts about when a PPU case is not ‘‘absolutely necessary;’’ Cfr. Joined Cases C-261/
08 and C-348/08 María Julia Zurita García, Aurelio Choque Cabrera v Delegado del Gobierno
en la Región de Murcia [2009] ECR I-10143 in which the PPU request was rejected (and thus the
case was heard on the basis of the standard preliminary ruling procedure) with Case C-278/12
PPU Atiqullah Adil v Minister voor Immigratie, Integratie en Asiel Judgment of the Court
(Second Chamber) of 19 July 2012, nyr, where the PPU request was accepted; both cases
concerned the interpretation of Regulation 562/2006 (i.e. the Schengen Borders Code).
117
See Ref. [101].
118
The new provisions entered into force on 1st November 2012; see Article 210 of the Rules of
Procedure of the Court of Justice of the European Union (OJ L 265/I, 29.9.2012).
amendment. First, the great number of preliminary proceedings in the Court0 s

practice necessitated the adaptation of the rules, which were originally primarily
tailored to direct actions, to its caseload.119 The new rules take account of pro-
cedural economy considerations and, additionally, aim at simplifying complex
procedures and ease certain procedural arrangements. Significantly, some changes
have also been introduced in relation to the PPU procedure thus taking on board
some of the afore-mentioned concerns about ensuring a fair hearing. Underlying
these changes is also the broader consideration that the AFSJ has given rise to a
considerable and increasing amount of legislative activity.120 Moreover, Article 78
TFEU121 links the development of a common policy on asylum (including the
enactment of secondary legislation as well as EU agencies’ migration management
operations) with the compliance of the principle of non-refoulement, which goes
beyond the obligation of the 1951 Convention. Article 78 TFEU, therefore, not
only protects refugees from being sent back to places (mostly the country of
origin) where their lives or freedoms could be threatened but also prohibits any act
that prevents access to European territories and does not allow them to obtain the
necessary protection.122 This interpretation of Article 78 TFEU is confirmed by
explicit reference to non-refoulement in various EU Directives such as the Asylum
Procedures Directive (Directive 2005/85/EC), the Temporary Protection Directive
(Directive 2001/55/EC)123 and the Returns Directive (Directive 2008/115/EC).124
Despite this, there have been problems of respecting the principle of non-refoul-
ement either because of failure to transpose EU law into the domestic legal sys-
tem125 or because of inadequate access to procedures, poor reception conditions
(also) at borders or points of entry amounting to ill-treatment, particularly of those
asylum-seekers who are in a situation of vulnerability.126 The European
119
To this end, the new Rules introduced a separate, third Title on references for a preliminary
ruling (Articles 93–118). In 2011, 423 references for a preliminary ruling were submitted to the
ECJ of which 44 in the field of AFSJ (23 cases completed), see the 2011 Annual Report of the
Court of Justice, Section D, Statistics of Judicial Activity of the Court of Justice, available at:
http://curia.europa.eu/jcms/upload/docs/application/pdf/2012-06/ra2011_statistiques_cour_en.pdf.
120
First, a case connected to another pending case assigned to a Judge Rapporteur can be
assigned to the same Judge Rapporteur, even if he/she is not a member of the designated Chamber
(Article 108 (2)). Second, another Member State can be invited to participate in the proceedings,
in case the request for a preliminary ruling refers to an administrative procedure or to judicial
proceedings in its territory (Article 109 (3)).
121
Formerly Articles 63, points 1 and 2, and 64(2) EC.
122
See Refs. [79–81], see footnote 83, at 695.
123
For analysis and commentary, see Refs. [102–105]; see also Ref. [106, 107]
124
For further analysis, see Refs. [108–112].
125
See e.g. Case C-72/06 Commission v Greece [2007] ECR I-57.
126
See e.g. Case of Sharifi and others v Italy and Greece (Application No. 16643/09)
communicated on 13 July 2009; see also UN High Commissioner for Refugees, Written Submission
by the Office of the United Nations High Commissioner for Refugees in the Case of Sharifi and
others v Italy and Greece (Application No. 16643/09), October 2009, Appl. No. 16643/09, available
at: http://www.unhcr.org/refworld/docid/4afd25c32.html; ECRE, Defending Refugees’ Access to
Commission has been endorsing a stronger human rights approach since the
beginning of the second phase of CEAS with various Recast proposals calling for
further harmonization and higher standards.127 Furthermore, Article 18 of the EU
Charter protecting the right to asylum equally seems to embrace a similar reading
of Article 78 TFEU in consideration of the fact that the right to be granted asylum
has become a subjective and enforceable right which not only must be respected
but also protected in practice.128
Arguably, the ToL constitutes the culmination of a gradual but steady process
of Europeanization or ‘‘de-nationalization’’129 of the decision-making process and
a shift towards further transparency and democratization initiated by the ToA.
Significantly, Article 67(1) TFEU provides that ‘the Union shall constitute an area
of freedom, security and justice with respect for fundamental rights and the dif-
ferent legal traditions and systems of the Member States’ as well as the definition
of a CEAS based on solidarity between Member States and which is fair towards
TCNs. Article 15 TFEU reinforces the link between transparency and participatory
democracy by stating that ‘in order to promote good governance and ensure the
participation of civil society, the Union’s institutions, bodies and agencies shall
conduct their work as openly as possible’ and that the Parliament and the Council
(when it considers and votes on a draft legislative act) shall meet in public. The
role of national parliaments has also been strengthened following their monitoring
of compliance of legislation in the AFSJ with the principle of subsidiarity130 and
the protocols on the role of the national parliaments in the EU and on the appli-
cation of the principles of subsidiarity and proportionality.131 In particular, they
‘may participate in the evaluation mechanisms’ for the implementation of Union
policies in the AFSJ.132

Protection in Europe, December 2007, available at: http://www.ecre.org/topics/areas-of-work/
access-to-europe/95-defending-refugees-access-to-protection-in-europe.html.
127
See Refs. [113, 114].
128
This can be inferred from the reasoning of the Court in Bolbol, C-31/09 Bolbol [2010] ECR I-
5539, examined above and also, more recently, from the ruling in Case C-245/11 K v
Bundesasylamt (Austria), Judgment of the Court (Grand Chamber), nyr, and Case C-528/11
Zuheyr Freyeh Halaf v Darzhavna agentsia za bezhantsite pri Ministerski, nyr, Judgment of 30
May 2013.
129
By ‘‘de-nationalization’’ I refer to the demise of individual states’ centrality in decision-
making most well-represented by conventional approaches to national sovereignty. I am not
suggesting a clear-cut supranationalization over and beyond intergovermentalist forms of
decision-making at EU level, the premise being that states in a post-Westphalian era can only
survive as a collectivity.
130
See Articles 5(3) TEU and 69 TFEU.
131
See Protocols 1 and 2.
132
See Article 12(c) TEU.
As regards the substantive scope of the CEAS, Article 78(2) TFEU uses the
latter term to include the following:
• a uniform status of asylum
• a uniform status of subsidiary protection
• a common system of temporary protection
• common procedures for the granting and withdrawing of uniform asylum or
subsidiary protection status
• criteria and mechanisms for determining the responsible state
• standards concerning the conditions for the reception of applicants for asylum or
subsidiary protection
• partnership and cooperation with third countries for the purpose of managing
inflows of people applying for asylum or subsidiary or temporary protection.
According to the European Commission the development of CEAS entails

progressive legislation, leading to a shift from ‘‘voluntary’’ to ‘‘mandatory,’’ and
an abolition of opt-out clauses and finally to a ‘‘full’’ harmonization of procedures,
criteria and mechanisms as well as standards mentioned in Article 78 TFEU.
Under Article 78 TFEU the term CEAS will rank as a primary EU law concept
allowing for a systematic approach to the asylum acquis.133
2.1.4 The Significance of the EU Charter of Fundamental

Rights and Freedoms in Strengthening Protection
Seekers’ Rights
With the entry into force of the ToL, the EU Charter has acquired the same legal
status of the EU Treaties with the effect that it has become legally binding for all
the EU institutions, bodies and agencies and for the EU Member States’ actions
within the scope of EU law.134 The EU Charter sets out in a single text a range of
civil, political, economic and social rights of European citizens and all persons
resident in the EU. It has thus increased the visibility of existing rights.135 As
noted by Iglesias Sánchez ‘the Charter has improved the centrality and weight of
fundamental rights, reinforcing both their visibility in the legal discourse of the
Court and their role as parameters of constitutionality.’136
Until the adoption of the EU Charter we were accustomed to understanding the
protection of fundamental human rights as belonging to two separate universes: on
the one hand, that of national constitutional settlements and, on the other hand, that
133
See Hailbronner, see footnote 63, p. 8.
134
See Article 6 (1) TEU; for critical analysis, see Ref. [115].
135
See Ref. [116], at 1204.
136
See Ref. [117], at 1576.
of international, including regional, human rights instruments.137 With the entry

into force of the ToL, the entitlement to rights no longer depends on either national
constitutional settlements or on international human rights treaties (with all the
difficulties attendant on accessing those rights).138 Already prior to the ToL, at a
time when the EU Charter was still a persuasive legal instrument for statutory
interpretation, Advocate General (AG) Maduro in his Opinion in the Elgafaji
case,139 stated that the EU Charter had a dual function: ‘In the first place, it may
create the presumption of the existence of a right which will then require confir-
mation of its existence either in the constitutional traditions common to the
Member States or in the provisions of the ECHR. In the second place, where a
right is identified as a fundamental right protected by the Community legal order,
the EU Charter provides a particularly useful instrument for determining the
content, scope and meaning to be given to that right.’
The EU Charter is not limited in its scope of application to Union citizens but
also extends to TCNs. The significant novelty of the EU Charter’s provisions is
that only a few are limited to EU citizens, which are mainly to be found in Title V.
However, even in this chapter, there are very important rights to which any person
is entitled to. For example, Article 41 of the EU Charter contains a right to good
administration and it provides that: ‘every person has the right to have his or her
affairs handed impartially, fairly and within a reasonable time by the institutions
and bodies of the Union.’ When referring to the institutions and bodies of the
Union it also includes national authorities when they are carrying out EU law (as
per Article 51 of the EU Charter). Consequently, asylum-seekers can equally rely
on Article 41 of the EU Charter for requesting that his or her claim be dealt with in
an impartial and fair manner and within a reasonable period of time. This argument
is further buttressed by the fact that asylum law and policy is now clearly within
the remit of EU law.140 By the same token, asylum-seekers can also rely on Article
47 of the EU Charter, which provides for the right to an effective remedy and to a
fair trial.141
Moreover, Article 18 of the EU Charter states that: ‘The right to asylum shall be
guaranteed with due respect for the rules of the Geneva Convention of 28 July
1951 and the Protocol of 31 January 1967 relating to the status of refugees and in
accordance with the Treaty on European Union and the Treaty on the Functioning
of the European Union (hereinafter referred to as ‘‘the Treaties’’).’ Gil-Bazo traces
the roots of Article 18 of the EU Charter back to Article 14 of the 1948 Universal
Declaration of Human Rights (UDHR).142 By examining the Charter’s travaux
137
See Ref. [118].
138
Idem.
139
See Opinion of AG Maduro in Case C-465/07 Elgafaji and Elgafaji [2009] ECR I-921.
140
E.g., see the Qualification Directive 2004/83 and the Procedures Directive 2005/85.
141
E.g., C-175/08 Abdulla case where the ECJ refers, among other things, to the respect of the
rights protected in the EU Charter.
142
See Ref. [119].
préparatoires and explanations drafted by the Presidium143 as well as the con-

stitutional traditions of Member States, she argues that the EU Charter seems to
have gone beyond Article 14 UDHR144 and the right to be granted asylum has
become a subjective and enforceable right the protection of which all individuals
with an international protection need are entitled under the Union’s legal order,
provided that their protection grounds are established by international law, irre-
spective of whether they are found in the Refugee Convention or in any other
international human rights instrument.145 The combination of Article 18 of the EU
Charter and Article 78 TFEU goes beyond a mere recognition of the existence of
the right to asylum and of its respect. It now weighs on the EU and its Member
States as a true ‘‘positive obligation’’ implied by the need to ‘‘guarantee’’ the right
to asylum. In accordance with the law of the ECHR as developed by the Stras-
bourg Court, the concept of ‘‘positive obligation’’ here means an obligation to
‘‘ensure’’ which goes beyond an obligation ‘‘not to do,’’ that of the classic pro-
hibition of breaching the Geneva Convention.146 Hence, the obligations derived
from Article 18 of the EU Charter are not only satisfied by the principle of non-
refoulement. The former requires additionally that an effective benefit of that
protection, including an appropriate status, must be ensured. Moreover, the
combined provisions of Article 18 of the EU Charter and Article 78 TFEU
effectively ‘‘constitutionnalize’’147 the material scope of the right to asylum in the
EU. In this context, AG Maduro stated in Elgafaji that the Qualification Directive
aims to assert the fundamental right to asylum.148 Furthermore, Peers argues that
the right to asylum should be considered to be a general principle of EU law due to
its recognition in many national constitutions.149 A fortiori a return to a country
which does not grant status is incompatible with Article 18 of the EU Charter
given that it provides that the right to asylum must be guaranteed (not merely the
‘‘right to seek’’ asylum as per Article 14 UDHR).150
However, there is also another reading of the provision contained in Article 18
of the EU Charter. According to this interpretation, the right to asylum does not
have autonomous legal content: pursuant to the provision in Article 18 of the EU
Charter the right to asylum has to be guaranteed within the legal framework of the
Geneva Convention and EU law (including the rules of interpretation provided by
Article 6(1) TEU, Title VII of the EU Charter and the case law of the ECJ).
143
See Ref. [120].
144
On Article 14 UDHR, Gammeltoft-Hansen and Gammeltoft-Hansen say that the provision
does seem to require a right to an asylum procedure of some kind for it to be meaningful, see
Ref. [121].
145
See Ref. [119], see footnote 142, at 48 and 50.
146
See Ref. [122], at p. 430.
147
Ibidem, at p. 431.
148
See AG Maduro Opinion in C-465/07 Elgafaji v. Staatssecretaris van Justitie [2009] ECR I-
921, para. 30.
149
See Ref. [123].
150
See Ref. [124], at 36.
Consequently, following this reading Article 18 of the EU Charter cannot be

interpreted as meaning that it produces direct effects and that it creates individual
rights which national courts must protect, as the provision does not ensure a clear
and unconditional right. What it means rather is its implementation is made
conditional to the adoption of EU secondary legislation and/or measures enacted
under national law. The fact that Article 18 of the EU Charter is subject to different
interpretations may explain why the ECJ to date has been reluctant to pronounce
itself on the exact content of the right to asylum.
Article 19 of the EU Charter is the other relevant provision for asylum-seekers.
According to the EU Charter’s Explanations,151 paragraph 1 of this Article has the
same meaning and scope as Article 4 of the Protocol No 4 to the ECHR concerning
collective expulsion. Its purpose is to guarantee that every decision is based on a
specific examination and that no single measure can be taken to expel all persons
having the nationality of a particular State.152 Paragraph 2 incorporates case-law
from the ECtHR regarding Article 3 of the ECHR, chiefly, that the prohibition of
collective expulsion in international law is based on two basic principles, namely
the prohibition of discrimination and the prohibition of arbitrariness. It also
extends the fundamental principle of non-refoulement to all cases of removal,
extradition and deportation where a person would be sent to a country where there
is a real risk of being executed, tortured or subjected to other inhuman or
degrading treatment or punishment.
2.1.5 From ‘‘Minimum’’ to ‘‘More Favourable Standards’’

to ‘‘Common’’: Where Do We Draw the Line?
Despite the official shift in focus from ‘‘minimum’’ to ‘‘common’’ standards that
the creation and further development of CEAS has generated and that is clearly
visible in the recast proposals of the existing asylum Directives,153 the push for
further harmonization has not entailed an abandonment tout cours of flexibility and
a margin of appreciation on the part of the Member States.154 As noted by
151
See Praesidium of the European Convention [120], see footnote 143.
152
See also Article 13 of the ICCPR.
153
For instance, in the revised Reception Conditions Directive there is reference to ‘‘standards’’
rather than ‘‘minimum standards’’ reflecting the wording of the ToL. However, Member States
will still be free to set ‘‘more favourable provisions’’ for asylum-seekers (e.g. Article 4); similarly
with regard to the revised Asylum Procedures Directive where the focus shifted to setting
‘‘common procedures’’ rather than ‘‘minimum standards’’, again reflecting the revised wording of
the ToL. However, Member States will still be free to set ‘‘more favourable provisions’’ for
asylum procedures (e.g. Article 5).
154
In examining the Asylum Procedures Directive, Vedsted-Hansen argues that Member States
are willing to accept a relatively high degree of harmonization in some policy areas, while in
others persist in defending domestic legislation, thereby in effect undermining the minimum
Hailbronner, it seems unlikely that by adopting the ToL Member States were
prepared to completely give up their specific concepts of accommodating pro-
tection needs.155
The changes introduced by the ToL focusing on the adoption of ‘‘common
policies’’156 seem to indicate that further legislation in asylum is not limited to
‘‘minimum standards.’’ In particular, the reference to ‘‘standards’’ would seem to
indicate a departure from the lowest common level of all EU Member States. In
spite of their different meaning, the term ‘‘minimum standards’’ has often been
used in close connection with the ‘‘more favourable standards’’ clause which is
explicitly included in all Directives.157 Basically, irrespective of the more
favourable treatment clauses of the Directives it is assumed that the provisions of
the Directives admit a deviation in favour of TCNs whose rights and duties are
regulated by the Directives. As the term itself suggests, ‘‘minimum standards’’
refers to legislation providing for a set of ‘‘minimum rules’’ which must be
observed by the Member States and which does not have a harmonizing objective.
The term ‘‘more favourable standards’’ instead permits Member States to go
beyond the general standards established in CEAS. While prima facie it may
appear as a better clause, this term has been problematic in practice.158 In the first
place, Member States have used this clause to argue that by maintaining more
favourable national laws no transposition of asylum Directives was needed with
the unwanted result of having either a partial or full non-transposition of asylum
Directive provisions.159 Linked to this, allowing Member States to maintain
substantially different ‘‘higher’’ standards concerning the processing of asylum-
seekers and the criteria on eligibility potentially undermines CEAS (and negates
its harmonization objective) and the concept of a uniform status and, furthermore,
it does not deter secondary movements making the idea of a general system of
mutual recognition of asylum decisions very difficult to achieve. Hence, as pointed
out by Symes the EU’s aspiration of harmonization ‘does not yet reflect the reality
on the ground. The question that confronts the refugee lawyer is whether there is
any tenable legal challenge based on failures to adequately implement the
Directives.’160

harmonization stipulated by Article 63 EC, for a combination of regulatory tradition and cal-
culated evasion [emphasis added], see Ref. [60], see footnote 66, at p. 262.
155
See Ref. [125].
156
See chapter 2, Title V, Part Three.
157
For examples, see footnote 153.
158
159
Examples are the transposition of provisions relating to the refugee definition and/or the
definition of persons eligible for subsidiary protection or the transposition of mandatory
provisions on refusal or termination of refugee and subsidiary protection status in the event that
there are no provisions under national law. See also Ref. [126], 4.
160
See M. Symes, see footnote 150, at 29.
From a narrower perspective, it may be questioned the extent to which it is

possible to apply the concept of ‘‘more favourable standards’’ to provisions which
contain obligatory restrictions concerning the acquisition and exercise of rights
under the Directives. Most Directives’ provisions are drafted in mandatory lan-
guage and use the word ‘‘shall.’’ Moreover, even in cases where the provisions
allow for Member States’ discretion and include the word ‘‘may’’ there is still a
degree of obligation implicit in them in so far as Member States must not exclude
certain approaches to interpretation. A 2002 legal opinion of the Council’s legal
service on the mandatory nature of the draft Qualification Directive’s provisions
confirms this approach.161 In particular, the legal opinion provided that, under
certain circumstances and from the content of a given provision, the use of the
word ‘‘may’’ can also include an obligation from which no derogation is possible.
Article 5(1) of the Qualification Directive is an example of the latter, where it
provides that a well-founded fear of being persecuted ‘‘may be based’’ on events
that have taken place since the applicant left the country of origin.162 The above
legal opinion also stated that the term ‘‘shall’’ may provide minimum standards in
relation to the rights and benefits of TCNs which leave it open for Member States
to grant more favourable treatment to those persons. At the same time, it seems
that minimum standards will not permit derogations if according to the purpose
and content of the provision the derogation would be incompatible with the aim of
harmonization. In these circumstances, allowing derogations could impede the
effective implementation of the Directive owing to the potentially negative effects
on other Member States. On a more general note, it could also be argued that a
further difficulty with these concepts is that, due to the complexity in establishing
their clear boundary, the current powers of the Commission to initiate infringe-
ment proceedings before the ECJ against a Member State, which fails to comply
with EU asylum law, is weakened.
Two UNHCR comparative studies on the implementation of the Qualification
Directive in selected Member States163 and the Asylum Procedures Directive164
show divergent outcomes of comparable asylum applications in different Member
States due to the significant variations in recognition practices. With regard to
asylum procedures, the UNHCR study found that the Directive has not achieved
the harmonization of legal standards or practices across the EU it was purported to
achieve. The main reason is the degree of flexibility and wide margin of discretion
allowed by the Directive’s provisions combined different interpretations of the
rules and different approaches to their application by the Member States.
The problems and flaws inherent in the EU asylum Directives adopted during
the CEAS’ first phase have been clearly acknowledged by the European Com-
mission. In both the 2007 Green Paper on the future Common European Asylum
161
See Ref. [127].
162
See Ref. [128], at 17.
163
See Ref. [129].
164
See Ref. [129], see footnote 159.
System165 and the 2008 Policy Plan on Asylum,166 the Commission suggested ways
to minimize the margin for divergent interpretation and application in the Member
States through a higher degree of harmonization of protection standards thus
ensuring access to protection under equivalent conditions across the EU, an
approach which is reflected in its recast proposals.
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408.201, p. 2
126. UNHCR (2010) Improving asylum procedures: comparative analysis and recommendations
for law and practice. A UNHCR research project on the application of key provisions of the
Asylum Procedures Directive in Selected Member States, Brussels: UNHCR 2010.
Available via http://www.unhcr.org/4ba9d99d9.pdf
127. Council of the European Union (2002) Contribution of the legal service to the asylum
working party on a proposal for a council directive on minimum standards for the
qualification and Status of third country nationals and stateless persons as refugees or as
persons who otherwise Need protection—articles 1 and 4, council doc 14348/02 of 15
November 2002 (JUR 449, ASILE 67)
128. Storey H (2008) EU refugee qualification directive: a brave new world? Int J Refugee Law
20(1):1–49
129. UNHCR (2007) Asylum in the european union. A study of the implementation of the
qualification directive, brussels: UNHCR 2007. Available via http://www.unhcr.org/cgi-bin/
texis/vtx/search?page=search&docid=47302b6c2&query=Asylum%20in%20the%
20European%20UNion
130. European Commission (2007) Green paper on the future common European asylum system
COM (2007) 301 final
131. European Commission (2008) Communication from the commission to the European
parliament, the council, the european economic and social committee and the committee of
regions, policy plan on asylum—An integrated approach to protection across the EU,
COM(2008) 360 final
Chapter 3
Recasting of Asylum Legislation:
Nolumus leges mutari!
3.1 The Dublin III Regulation: (Still) in Search

of a Dialogue Between Burden Sharing,
Mutual Trust and Guarantee of Non-refoulement
In June 2013 the Council of Ministers and the European Parliament reached an
agreement on the proposed Regulation Recast, which sets out a revised set of rules
for the Dublin system on responsibility for asylum-seekers’ applications.1 The
Dublin system is a key component of CEAS impacting on Member States’ asylum
systems but also, and significantly, on the lives of many protection-seekers. As
such, its reform has been advocated by many and was much awaited.
The Dublin II Regulation has been widely criticized for failing to adequately
protect asylum-seekers’ fundamental rights.2 The responsibility determination
rules under the Dublin II Regulation, which linked responsibility for asylum
applications to border management by compelling the return of individuals to third
countries for the sole reason of having transited through those countries, have
ended up overburdening less well-equipped asylum systems as well as creating
pressure for irregular or illegal migration within the EU.3 In particular, the Dublin
II Regulation provided that after the consideration of any family links or whether a
prior visa or residence permit existed, if it could be established that an asylum-
seeker had irregularly entered the border of a Member State by land, sea, or air
having come from a third country, the Member State thus entered would be
responsible for examining the request for asylum.4
Latin adage: ‘We do not want the laws to be changed.’
1
See Refs. [1–4].
2
E.g. Ref. [5–7].
3
4
See Article 10(1) of the Dublin II Regulation, now Article 13(1) Recast.

DOI: 10.1007/978-3-642-40267-8_3, The Author(s) 2014
40 3 Recasting of Asylum Legislation: Nolumus leges mutari!
One of the main shortcomings of the Dublin II Regulation, which also char-
acterizes the Dublin Regulation Recast (coined ‘‘Dublin III’’),5 was that it was
based on the idea that asylum-seekers could rely on equal access to protection and
justice in each Member State.6 In this context, the principle of mutual trust was
and remains a fundamental foundational principle underlying the operation of the
Dublin system and a key building-block of CEAS,7 which finds its legal expression
in the so-called ‘‘presumption of equivalent protection’’ or more generally a
‘‘presumption of safety’’ among those Member States which are part of the Dublin
system.8 Under the Dublin rules responsibility entails the obligation to take charge
of (or to take back) the (failed) asylum-seeker who turns up in a non-responsible
state and to examine the claim for asylum. Hence, mutual trust under the Dublin
rules concerns the examination of the request for asylum by the other Member
State, i.e. the procedure for sorting out whether or not the TCN fulfils the
requirements for international protection.9 It also concerns the treatment of the
asylum-seeker during this examination.10 The justification for mutual trust is
enshrined in the Preamble to the Dublin Regulation where it is stated inter alia that
‘Member States, all respecting the principle of non-refoulement, are considered as
safe countries for third-country nationals.’11 The mechanism of mutual recognition
as applied in the field of asylum also implies a practice of non-interference with
decisions already made on applications for asylum within the EU.12 This can be
seen also in the context of the Asylum Procedures Directive where Member States
may declare an application for international protection inadmissible if a decision
on the same application has already been made in another Member State.13 Mutual
5
For a detailed examination of the Dublin II Regulation’s compliance with International
Refugee Law, see Ref. [10].
6
See Ref. [11, 12]; see Ref. [13], at 605–607; Ref. [14], at 971; Ref. [15] at 207.
7
Battjes defines mutual trust in the Dublin system as follows: ‘the assumption that each Member
State will treat asylum-seekers and examine their claims in accordance with the relevant rules of
national, European and International Law,’ see Ref. [16], at p. 9.
8
See Ref. [17], at 12.
9
See Battjes (2011), see footnote 7, at pp. 9–10. An exception to mutual trust is represented by
the so-called ‘‘discretionary clauses’’ as per Article 17 Recast, discussed further below in this
section.
10
Ibidem, at p. 10.
11
See Recital 3 of the Dublin Regulation Recast, which states that: ‘The European Council, at its
special meeting in Tampere on 15 and 16 October 1999, agreed to work towards establishing the
CEAS, based on the full and inclusive application of the Geneva Convention Relating to the
Status of Refugees of 28 July 1951, as supplemented by the New York Protocol of 31 January
1967 (hereinafter referred to as ‘‘the Geneva Convention’’), thus ensuring that nobody is sent
back to persecution, i.e. maintaining the principle of non-refoulement. In this respect, and without
the responsibility criteria laid down in this Regulation being affected, Member States, all
respecting the principle of non-refoulement, are considered as safe countries for third-country
nationals.’
12
See Staffans (2008), see footnote 57 in Chap. 2, at p. 161.
13
See e.g. Article 33(2)(a) and (d) of the Asylum Procedure Recast Directive.
3.1 The Dublin III Regulation: (Still) in Search of a Dialogue 41
trust is not absolute and Member States will have to put it aside when this is
required to guarantee non-refoulement.14 Nevertheless, mutual trust—and, in
particular, mutual recognition of decisions- is a means to ensure the preservation
of states’ exercise of sovereign powers. In addition, and linked to this, significant
differences between Member States as to the level and standard of protection
remain a reality of the European asylum landscape.15 Consequently, great dis-
parities and inequality affecting asylum-seekers as well as certain Member States
persist.16 Studies conducted on the operation of the Dublin system show that it has
failed to produce the effects of mutual recognition that it was hoped for and that
only a minority of cases that are intended to be transferred through the scheme are
actually subject to mutual recognition.17 In particular, the application of the Dublin
system has led to an unequal distribution of displaced persons across Europe and to
an increased number of asylum-seekers being returned to Member States on the
borders of the enlarged Union, chiefly Central Eastern European countries and
Southern Mediterranean countries which have been unable to deal with flows of
asylum-seekers,18 as well as a resort to onward and illegal transit.19 Hence, under
the Dublin II Regulation entry controls have been linked to the allocation of
responsibility creating unequal burdens depending on a country’s geographical
position.20 Regrettably, this remains unchanged under Dublin III. Arguably, this is
contrary to the principle of solidarity and fair sharing of responsibility which
according to Article 80 TFEU underlie the adoption and implementation of asylum
policies. This state of affairs has had the detrimental effect of leading some
14
In this sense, see the judgments of MSS v Belgium and Greece, Application No. 30696/09,
judgment of 21 January 2011 (ECtHR) and Joined Cases C-411/10 and C-493/10 NS v Secretary
of State for the Home Department and ME and Others v Refugee Applications Commissioner and
Minister for Justice, Equality and Law Reform, judgment of the Court (Grand Chamber) of
21 December 2011, nyr, which are examined in much detail in Chap. 4.
15
In this context it should be noted that the Dublin Regulation not only applies to all Member
States, including the UK, which has also opted in Dublin III, Ireland as well as Denmark (by
virtue of a treaty between the EU and Denmark), but also to the four non-EU states associated
with the EU’s ‘‘Schengen’’ rules on abolition of border controls: Norway, Iceland, Switzerland
and Liechtenstein. All together and including the newest country to join the EU, namely, Croatia,
thirty-two countries are subject to the new rules.
16
See Ref. [18].
17
See ECRE (2006), see footnote 6 Ref. [19].
18
Two countries with well-publicized mal-functioning asylum systems are Greece and Italy. In
Greece, problems include many asylum-seekers left in a situation of complete uncertainty as well
as poor conditions in detention. Some concerns were raised that this state of affairs could lead to a
risk of refoulement. However, in practice and in spite of the above problems, it seems that Greece
has not been very active in returning asylum-seekers. As to Italy, the problems faced by this
country have included the well-known refoulement of asylum-seekers trying to reach the island of
Lampedusa, and failures to give effective access to the status determination procedures with
many protection-seekers being left on the street; for further critical analysis from a human rights
perspective, see M. Symes, see footnote 150 in Chap. 2.
19
See, Ref. [20], at 506.
20
See Ref. [21], at p. 137; see also Ref. [22].
Member States to adopt restrictive asylum measures thus denying access to a fair
and effective asylum procedure. Greece is a case in point.21 Since early 2004 the
Greek authorities have been interrupting the examination of asylum applications
for persons who have been returned to Greece under Article 13 of the Dublin II
procedure22 on the basis of Article 2(8) of the Presidential Decree 61/99, which
allows the Ministry of Public Order to interrupt the examination of an asylum
claim when the applicant ‘‘arbitrarily leaves his/her stated place of residence.’’ In
practice, the Greek authorities have used this provision to ‘‘interrupt’’ the asylum
claims of individuals having transited illegally to other Member States and sub-
sequently have used this as a justification for denying these individuals access to
an asylum procedure when returned to Greece under the Dublin Regulation. Even
when Greek authorities have accepted responsibility for the asylum claim fol-
lowing a request by another Member State, an interruption decision has been
subsequently issued prior to transfer to Greece. Thus, when the applicant was
returned to Greece, upon arrival they would be informed of the interruption of the
decision, issued with a deportation order and detained prior to expulsion.23 In
addition, there is significant difference in the level of reception conditions in the
different Member States.24
The Regulation has also been criticized for being an incentive for countries to
increasingly resort to using detention as a means to secure Dublin II transfers,
discussed further below in this section.25 Additionally, the operation of the Dublin
II Regulation to date has been inefficient, expensive and time-consuming in spite
of efficiency being one of its main objectives26 and it has failed to achieve its goal
of reducing the number of multiple applications.27 In particular, ECRE’s findings
show that the implementation of the Dublin Regulation has added a lengthy and
21
The problems concerning the asylum system of Greece and treatment of asylum-seekers is
examined further within the jurisprudential analysis of the European Courts, see Chap. 4 in this
volume.
22
Article 13 of the Dublin II Regulation provided that: ‘Where no Member State responsible for
examining the application for asylum can be designated on the basis of the criteria listed in this
Regulation, the first Member State with which the application for asylum was lodged shall be
responsible for examining it.’ The amended procedure for examining an application for
international protection is now to be found in Article 3 of the Recast Regulation. The
corresponding provision is now to be found in paragraph 2 which significantly envisages the
scenario whereby it may be impossible to transfer an applicant to the Member State primarily
designated as responsible because there are substantial grounds for believing that there are
systemic flaws in the asylum procedure and in the reception conditions for applicants in that
Member State, resulting in a risk of inhuman or degrading treatment within the meaning of
Article 4 of the EU Charter.
23
24
See Ref. [25].
25
See ECRE (2006), see footnote 6.
26
See Ref. [26], at p. 10.
27
Ibidem, at p. 11.
cumbersome procedure to the beginning of the asylum process.28 This lengthy

process unnecessarily prolongs the state of uncertainty in which asylum-seekers
find themselves as well as delaying refugees’ integration in the host country.29 For
these reasons ECRE proposed an alternative system for allocating responsibility
for determining an asylum claim which, had it been included in the revised
Regulation, would have been conducive to a more efficient and fairer Dublin
system.30 Specifically, the proposal envisaged two criteria: a) the Member State
where the asylum-seeker has a family member, provided he or she consents to a
transfer to that state; or b) the Member State in which an asylum claim was first
lodged, unless there are compelling humanitarian considerations to preclude this.
The underlying argument of ECRE’s proposal was that the creation and effective
operation of CEAS would provide the basis for common asylum procedures and
mechanisms for improved quality standards, which in turn would ensure an
equivalent treatment of asylum-seekers and refugees throughout the EU and thus
avoid the situation whereby certain Member States would be excessively over-
burdened.31 A central component of ECRE’s proposal was the development of a
series of responsibility sharing and practical co-operation measures aimed at
increasing the capacity and efficiency of national asylum systems32 such as a well-
resourced financial burden sharing instrument—based on the costs of hosting and
processing asylum claims, which could compensate Member States receiving
higher volumes of asylum applications; common co-ordinating bodies and struc-
tures to assist overburdened Member States; the setting up of joint responses to
major humanitarian crises.33
The Dublin Regulation Recast places greater emphasis on the humanitarian
dimension of the Dublin system, in line with the objectives of creating CEAS.
However, it still fails to sufficiently address the underlying weaknesses of the
Dublin system.34 As mentioned earlier, the main limitations of the Dublin Regu-
lation are associated with the way it has been conceptualized: mainly as an
28
Idem.
29
Ibidem, at p. 26.
30
See Nash and Kok, see footnote 3, at 30.
31
Ibidem, at 31.
32
See Article 80 TFEU which provides that EU (immigration and) asylum policies and their
implementation ‘shall be governed by the principle of solidarity and fair sharing of responsibility,
including its financial implications, between the Member States;’ see also Article 67(2) TFEU
which provides that EU immigration and asylum policy shall be ‘based on solidarity between
Member States.’
33
See Article 78(3) TFEU which refers to the issue of an ‘emergency situation’ constituting a
‘sudden inflow’ of third-country nationals.
34
See, Ref. [27].
administrative tool for establishing Member States’ responsibility for examining

asylum claims rather than as a burden-sharing instrument for protecting refugees in
the EU,35 and again Dublin III reproduces this intrinsic logic. In addition, the latter
remains premised on the assumption that there is an equal level of standards of
protection across the EU failing to take into due consideration the inconsistent
level of protection in the Member States. This problem combined with the
(untouched) responsibility determination rules for examining an asylum applica-
tion may hinder the creation of CEAS, which is based on solidarity and integration.
In terms of ensuring access to a substantive and fair asylum procedure this is
problematic especially when considering that the processing of applications may
take several months leaving asylum-seekers waiting in uncertainty for a rather long
period of time. The maintenance of the same responsibility determination rules in
the Recast Regulation and the lack of harmonization in relation to protection
standards—as the European Parliament has observed—may mean that ‘the Dublin
system [even in its revised form]36 will continue to be unfair both to asylum-
seekers and to certain Member States.’37
Moving to the key changes introduced by the compromise text of the Dublin
Regulation Recast, one of the most significant amendments is the extension of the
scope of the Regulation to applicants for all forms of international protection.38
Moreover, the Regulation also applies to transit zones.39 With regard to the
guarantee of legal safeguards for persons falling within the scope of the Dublin
system, there is reference throughout the Recast Regulation to the right to an
effective remedy40 and in this context to free legal assistance and representation.
According to Article 27 Recast applicants have the right to judicial review of a
transfer decision. In particular, the new provisions included in paragraphs 3 and 4
have added some clarity in relation to the right of appeal or review of a transfer
decision, particularly in relation to the issue of whether lodging an appeal has an
automatic suspensive effect, which was the subject of much discussion under the
35
Notably the European Commission said that ‘the Dublin system […] was not devised as a
burden sharing instrument,’ see Ref. [28], at p. 10. This is also the position of the ECJ, see further
in Chap. 4, Sect. 4.3.
36
Author’s addition.
37
See Ref. [29], (Own Initiative Report).
38
See Articles 1 and 2(b) and (c) Recast.
39
See Article 3(1) Recast.
40
E.g. see Recital 19 (where there is also reference to Article 47 of the EU Charter), Articles
18(2) and 27 Recast.
Dublin II Regulation.41 Paragraphs 342 and 443 provide for national law concerning
appeals or reviews to envisage one of the following four scenarios, namely, the
right for the applicant to remain in the Member State concerned pending the
outcome of the decision, automatic suspension of the transfer for a certain rea-
sonable period of time44 and when such suspension lapses a judicial decision is to
follow on whether to grant suspensive effect to an appeal or review, a request
within a reasonable period of time to a court or tribunal to suspend the imple-
mentation of the transfer decision pending the outcome of his/her appeal or review
and that the competent authorities may decide, acting ex officio, to suspend the
implementation of the transfer decision pending the outcome of the appeal or
review. While Article 27 Recast represents a positive step forward from the per-
spective of the applicant’s right to an effective remedy it still leaves Member
States with considerable discretion. As a consequence, the procedural guarantees
for asylum-seekers against decisions of the Member States remain rather weak in
practice.45 Differences between Member States have not been removed and the
41
E.g. see Case C-19/08 Migrationsverket v Edgar Petrosian and Others [2009] ECR I-495,
where the ECJ was asked by the referring court to clarify on the meaning of Article 20(1)(d) and
(2) of the Dublin II Regulation, fort further analysis of this case, see Ippolito and Velluti (2011),
see footnote 55 in Chap. 2, at 35–36.
42
In particular para 3 provides that: ‘For the purposes of appeals against, or reviews of, transfer
decisions, Member States shall provide in their national law that: (a) the appeal or review confers
upon the person concerned the right to remain in the Member State concerned pending the
outcome of the appeal or review; or (b) the transfer is automatically suspended and such
suspension lapses after a certain reasonable period of time, during which a court or a tribunal,
after a close and rigorous scrutiny, shall have taken a decision whether to grant suspensive effect
to an appeal or review; or (c) the person concerned has the opportunity to request within a
reasonable period of time a court or tribunal to suspend the implementation of the transfer
decision pending the outcome of his or her appeal or review. Member States shall ensure that an
effective remedy is in place by suspending the transfer until the decision on the first suspension
request is taken. Any decision on whether to suspend the implementation of the transfer decision
shall be taken within a reasonable period of time, while permitting a close and rigorous scrutiny
of the suspension request. A decision not to suspend the implementation of the transfer decision
shall state the reasons on which it is based.’
43
Paragraph 4 provides that: ‘Member States may provide that the competent authorities may
decide, acting ex officio, to suspend the implementation of the transfer decision pending the
outcome of the appeal or review.’
44
The meaning and interpretation by the ECJ of ‘‘reasonable period of time’’ is examined in
much detail in section 3.3, concerning the Asylum Procedures Directive, further below.
45
The right to an effective remedy does not only require the existence but also accessibility of
such remedy for an individual. Any limitations imposed by the Member States must be necessary
to pursue a legitimate aim and proportionate to the aim it purports to achieve, and must no impair
the very essence of the right of access to an effective remedy. In this sense, see Shamayev and
Others v Georgia and Russia, Application No. 36378/02, judgment of 12 April 2005, para 447,
where the ECtHR stated that the exercise of the remedy must not be unjustifiably hindered by the
acts or omissions of the authorities of the respondent state, and similarly in Čonka the ECtHR
stated that the circumstances voluntarily created by the authorities must be such as to afford
applicants a realistic possibility of using the remedy, see Čonka v Belgium, Application No.
51524/99, para 46.
main objective of having a harmonized Dublin system remains far from being
achieved. Arguably, having a single provision requiring Member States to have
national laws in place granting automatic suspensive effect to applicants’ appeals,
in combination with a full examination of the grounds of an appeal in a single
hearing, would have ensured an expedited procedure, speed the final assessment of
the protection claim, reduce overall judicial burdens, and decrease costs to
Member States, which are required to provide legal representation for both sides.46
As to the suspension of transfers, the Commission’s Recast proposal contained
a procedure which would have allowed the Commission—on its own initiative or
on the initiative of another Member State—to suspend Dublin transfers to a
Member State when ‘circumstances prevailing in the Member State concerned
may lead to a level of protection for applicants for international protection which is
not in conformity with Community legislation, in particular with the Reception
Conditions Directive and the Asylum Procedures Directive.’47 According to the
proposal, the Commission would have based a decision to suspend transfers on ‘an
examination of all the relevant circumstances prevailing in the Member State,’ state
the reasons for the decision, and specify among other things ‘any particular con-
ditions attached to such suspension.’ The proposed Article 31 stated that the
Commission would have to determine whether the grounds for the suspension
persisted after a 6-months period.48 ECRE suggested to strengthen monitoring and
accountability by way of developing fourty benchmarks to assess progress,
requiring the Member State concerned to report progress on the basis of those
benchmarks within 6 months.49 ECRE also proposed to amend this provision by
including a reference to the fact that a failure to act to rectify the issues identified by
the Commission would have consequences such as, for example, the initiation of
infringement proceedings by the Commission, in order to prevent that suspensions
would not be unduly prolonged, and to avoid any risk that the suspension may end
up having detrimental effects on the applicants.50 The proposal further provided
that a Member State could request the Commission to temporarily suspend
incoming Dublin II transfers when faced with ‘a particularly urgent situation which
places an exceptionally heavy burden on its reception capacities, asylum system or
infrastructure, and when the transfer of applicants for international protection in
accordance with this Regulation to that Member State could add to that burden.’51
The Commission proposal on the above ‘‘suspension mechanism,’’ as amended
by the European Parliament,52 was met with opposition from the Council.53
46
47
See Article 31(2–3) of the Recast Proposal.
48
See Article 31(8) of the Recast Proposal.
49
50
Idem.
51
See Article 31(1) of the Recast Proposal.
52
See Ref. [30].
53
See Ref. [31].
A so-called ‘‘early warning system’’ has replaced the Commission’s proposed

suspension mechanism, which envisages an important role for EASO and it
enables the Commission to make recommendations to a Member State with
problems in its asylum system, inviting it to draw up a ‘‘preventive action plan.’’54
The wording of Article 33 in the final compromise text clearly indicates that it is
left to the discretion of the Member State concerned. In the case of a lack of
improvement the Commission in cooperation with the Member State in question
may then elaborate a ‘‘crisis management action plan’’ and the said Member State
would then have to submit regular reports on the implementation of these plans.55
In addition, paragraph 4 of Article 33 also envisages a significant role for the
Council as it states that during the entire process for early warning, preparedness
and crisis management the Council shall closely monitor the situation and may
request further information and provide political guidance, in particular as regards
the urgency and severity of the situation and thus the need for a Member State to
draw up either a ‘‘preventive action plan’’ or, if necessary, a ‘‘crisis management
action plan.’’ There is also the possibility for an involvement of the European
Parliament in relation to discussing and providing guidance with the Council on
any solidarity measures as they deem appropriate. Overall, the said ‘‘early warning
mechanism’’ is a more nuanced measure than the one proposed by the Commis-
sion, which does not provide for any specific time-frame and is open to flexibility
and discretion. Moreover, the involvement of so many EU Institutions and the
different stages envisaged also make it a rather hefty and lengthy process. Hence,
once again not only the fundamental rights of a protection-seeker are in jeopardy
but the objective of securing efficiency is also seriously undermined.
The Recast Directive also introduces some safeguards against the arbitrary or
excessive use of detention in the context of the procedure to transfer an asylum-
seeker or an applicant for subsidiary protection to the responsible Member State as
asylum-seekers are frequently detained in the context of these procedures.56 First,
Article 28(1) Recast refers to the principle contained in the Asylum Procedures
Directive that individuals should not be detained exclusively on the basis that they
are seeking international protection.57 In addition, Article 28(2) Recast only allows
detention in cases where there is a significant risk of absconding, on the basis of an
54
See Council of the European Union (2013), Position of the Council at first reading with a view
to the adoption of a Regulation of the European Parliament and of the Council 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 (recast), Brussels 31 May 2013, Doc No. 15605/2/12 REV 2, Article
33; see also Ref. [32].
55
56
This would be in line with the ECtHR’s jurisprudence, see Amuur v. France, ECHR (1996),
Application No. 19776/92, para 53, where the Court stated that ‘there must be adequate legal
protection in domestic law against arbitrary interferences by public authorities with the rights
safeguarded by the Convention.’
57
See Article 26(1) of the Recast Asylum Procedures Directive.
individual assessment of each case and only in so far as detention is proportional

and other less coercive measures cannot be applied effectively. Alternatives to
detention, which equally prevent the risk of absconding, are for example: regular
reporting to the authorities, the deposit of a financial guarantee, an obligation to
stay at a designated place. However, Article 2(n) Recast, which defines the ‘‘risk of
absconding,’’58 does not include a list of objective criteria that Member States may
use in establishing such a risk and thus Member States may interpret such as a
provision at their own discretion. Hence, while this provision may represent an
improvement in terms of applicants’ legal safeguards, the risk of arbitrary
detention nonetheless remains. The detention should be for the shortest period
possible and for a period of time reasonably necessary to fulfil the required
administrative procedures for carrying out a transfer.59 While this constitutes an
improvement from the perspective of asylum-seekers’ procedural guarantees, an
important safeguard permitting the use of detention only after the notification of
the decision to transfer to the applicant and only after the agreement of the
requested Member State with the transfer, has been removed in the final com-
promise text.60 Nevertheless, the Council has maintained in the text other Com-
mission’s proposals concerning detention conditions and related guarantees and
there is also reference to Article 31 of the Geneva Convention obligations.61
Significantly, Article 28(4) states that as regards the detention conditions and the
guarantees applicable to persons detained, in order to secure the transfer proce-
dures to the Member State responsible, Articles 9, 10 and 11 of the Reception
Conditions Directive shall apply. Moreover, in Recital 11 there is a broader ref-
erence to Reception Conditions Directive clearly stating that this Directive also
applies to asylum-seekers under the Dublin procedure.62
Other important amendments emphasizing a stronger humanitarian perspective
concern the definition of family members and family unification. The amendments
also expand the definition of ‘‘family members’’ as the definition no longer
encompasses only family links that already existed in the country of origin.
58
See Article 2(n) Recast, which provides that: ‘‘‘risk of absconding’’ means the existence of
reasons in an individual case, which are based on objective criteria defined by law, to believe that
an applicant or a third-country national or a stateless person who is subject to a transfer procedure
may abscond.’
59
60
61
See Council of the European Union (2013a), see footnote 1, Recital 20 and Article 28.
62
See Case C-179/11, CIMADE and GISTI v. Ministry of the Interior lodged on 18 April 2011,
pending, where the French Council of State has requested a preliminary ruling from the ECJ
concerning the applicability of the Reception Conditions Directive to asylum-seekers awaiting
the determination of the State responsible for examining their asylum claims under the Dublin II
Regulation; see also Case C-179/11 Opinion of the Advocate-General Sharpston delivered on 15
May 2012 for whom, on the basis of a combined reading of Articles 1 (on human dignity) and 18
(on the right of asylum) of the EU Charter and in the light of the Tampere Conclusions and the
objectives of CEAS, the answer is clearly in the affirmative; for further commentary and analysis
also in relation to and in the light of international human rights instruments see Ref. [33].
Although the meaning of ‘‘family members’’ in Article 2(g) refers to a family that
already existed in the country of origin, references in other Articles of the Recast
Directive also include ‘‘or any other family relations’’ or ‘‘regardless of whether
the family was previously formed in the country of origin.’’63 In relation to family
unification, the Recast Directive clearly includes family unification in the hierar-
chy of criteria by moving part of the current humanitarian clause to the hierarchy.
Specifically, Member States would be required to reunite unaccompanied minors
or dependant relatives with other relatives present in Member States.64 Moreover,
in addition to prioritizing the unification of unaccompanied minors with relatives
in the responsibility criteria, the Recast Directive introduces general safeguards for
children and specifies that the best interests of the child are a primary consider-
ation therefore requiring that Member States should trace all relatives of an
unaccompanied minor in any Member State.65 In addition, national authorities
would be required to receive training concerning the specific needs of minors.66
The Recast merges the remainder of the humanitarian clause with the sovereignty
clause as discretionary clauses.67 Hence, a transfer under the discretionary clauses
would continue to depend on the willingness of the receiving Member State.
By way of conclusion, the foregoing analysis and the findings therein seem to
suggest that the recasting process of the Dublin system has undergone various and
difficult stages in which a more rights-based approach in favour of asylum-seek-
ers—now clearly included in comparison with the Dublin II Regulation-remains
nevertheless in tension with a security paradigm aimed at preserving Member
States’ prerogatives. Hence, the procedural safeguards inserted in the final com-
promise text still fail to amount to a sufficiently robust guarantee of non-
refoulement.
63
See Recitals 17 and 18, Articles 4(1)(c), 7(3), 9, 31(2)(b) and 34(2)(a) Recast.
64
See Articles 6(4) and 8 Recast.
65
See Recitals 13 where there is explicit reference to the 1989 UN Convention on the Rights of
the Child, 16 and 24, Article 6 Recast; see also Case C-648/11, MA, BT, DA v Secretary of State
for the Home Department, Judgment of 6 June 2013, where the ECJ held that Article 6(2) of the
Dublin Regulation must be interpreted as meaning that, in circumstances where an unaccom-
panied minor who does not have relatives legally residing in the EU, has lodged asylum
applications in more than one Member State, shall remain in the country where their most recent
asylum application was lodged and that Member State shall take responsibility for the
examination (at para 66). Two aspects of the Court’s ruling are particularly noteworthy. First, the
reference to unaccompanied minors as a being a category of particularly vulnerable persons (at
para 55) and, second, the emphasis on the best interest of the child in all actions relating to him/
her, whether taken by a public authority or private institutions, as per Article 24(2) of the EU
Charter (at para 57), which consequently require that procedures for determining the Member
State responsible are not unnecessarily prolonged and that unaccompanied minors have prompt
access to the procedures for determining refugee status (at para 61).
66
See Article 6(4), subpara 3 Recast.
67
See Article 17 Recast.
3.2 The New Qualification Directive:

Who is the New Refugee?
The Qualification Directive rests at the centre of EU refugee law, defining the
standards of who qualifies for international protection.68 The original Qualification
Directive significantly expanded the wording of Article 1A of the Geneva Con-
vention and articulated the elements of the refugee definition more precisely.69
Nevertheless, it was not devoid of significant omissions and derogations allowing
Member States to have different recognition status of asylum-seekers across the
EU.70 With regard to the definition of ‘‘beneficiaries’’ of international protection,
the Qualification Directive apparently resulted in a significant degree of harmo-
nization of the interpretation of the Geneva Convention refugee definition, as well
the criteria for granting subsidiary protection in accordance with international
human rights obligations.71 However, the original Qualification Directive also
allowed for certain ‘‘optional mechanisms and exclusive procedures’’72 that
deviated from the general standards. In particular, Member States were given the
option to exclude persons falling within the harmonized Geneva Convention ref-
ugee definition from being granted EU refugee status under security-related cri-
teria which in practice constituted exclusion grounds in addition to, and therefore
at variance with, the Geneva Convention.73 Other ambiguities to be found in the
Qualification Directive concerned the standards for the assessment of facts that left
quite a wide margin of discretion to national authorities as well as the provision
regarding the recognition of refugee status sur place which rather than eliminating
differences of interpretation and application in the Member States seemed to
permit diverging national interpretations and internal inconsistency.74 The
approach of the Directive to international protection needs sur place remains
ambivalent. In particular, as Da Lomba notes the Directive seems to establish a
hierarchy between asylum claims sur place based on events that occurred in the
country of origin post-departure and claims that rely on actions engaged in since
leaving that country.75 While the former are looked upon favourably, the latter are
68
See Ref. [34].
69
See Ref. [35], at 97.
70
For critical academic commentary and policy analysis papers, see H. Battjes (2006), see
footnote 55 in Chap. 2, pp. 219–274; Gilbert (2004), see footnote 6, Refs. [36–40]; H. Storey
(2008), see footnote 162 in Chap. 2; see also See Refs. [41, 42].
71
See Articles 4–8 of the 2004 Qualification Directive (general standards), Articles 9–14
(refugee status) and Articles 15–19 (subsidiary protection).
72
See Vedsted-Hansen (2011), see footnote 66 in Chap. 2.
73
See Articles 14(4) and (5); Article 12 (grounds for exclusion) of the 2004 Qualification
Directive which are based for the most part on Article 1 D, E and F of the Geneva Convention.
74
See specifically Article 5(2) and (3) of the 2004 Qualification Directive; see Da Lomba
(2011), see footnote 70.
75
Ibidem, at p. 45.
3.2 The New Qualification Directive: Who is the New Refugee? 51
suspected of being manufactured. Asylum claims sur place must be assessed on

the same basis as other claims for refugee status.76 However, there is reluctance to
do so in respect of claims that are based on post-departure activity the fear being
abuse of the asylum process.77 Article 5(3) of the Qualification Directive singled
out manufactured subsequent applications for refugee status and indirectly relied
on the idea of bad faith as a bar to refugee status.78 On the other hand, Article
4(3)(d) as well as Article 20(6) and (7) made clear that international protection
status could be granted to persons who had manufactured their need for interna-
tional protection, although the latter foresaw the imposition of reductions of
benefits of a punitive nature for those who had been granted protection on the basis
of manufactured claims. Such reductions may engage Member States’ obligations
under the Geneva Convention and international human rights instruments.79
Hence, ‘such curtailments of rights cannot fall short of the minimum standards set
out in the 1951 Convention nor can they fall below the Member States’ interna-
tional human rights obligations.’80 It follows that only those rights not guaranteed
in binding international instruments could potentially be limited.81 It should be
noted that the Geneva Convention does not provide for punitive sanctions for
asylum-seekers who engaged in activity sur place for the sole purpose of gaining
refugee status and the principle of non-discrimination is a basic principle of
international refugee law.82
The 2004 Qualification Directive also included optional provisions in relation
to ‘‘protection standards’’ for persons who have been granted protection under the
Directive. First, it allowed for the reduction of standards for those refugees and
subsidiary protection beneficiaries whose status was deemed to have been obtained
on the basis of activities engaged in ‘for the sole or main purpose of creating the
necessary conditions for being recognized’ as a refugee or a person eligible for
subsidiary protection. Indeed, despite the condition that such reduction had to be
within the limits set by the Refugee Convention and other international obligations
the Directive clearly deferred important aspects of the issue to the Member
States.83 In addition, there was also significant deference to Member States as
regards the application of differential standards for subsidiary protection benefi-
ciaries in comparison with Geneva Convention refugees. The standard concerning
76
See Ref. [43].
77
See Ref. [44], at p. 200; see also Ref. [45].
78
Contra, the principle of good faith is a principle of public international law which concerns
the conduct of the parties which have bound themselves by an international treaty and does not
bind individuals, see H. Lambert (2006), see footnote 70, at 172.
79
See H. Battjes (2006), see footnote 55 in Chap. 2, at p. 485; see also [46], at 1538, for whom
these reductions may be in line with international human rights law although they do evoke and
cast suspicion on the protection-seeker and discredit the assessment for the need of protection.
80
See Da Lomba (2011), see footnote 70, at p. 60.
81
Ibidem, at p. 61.
82
See Article 3 of the Geneva Convention.
83
See Article 20(6) and (7) of the 2004 Qualification Directive.
access to employment is a case in point. In particular, while refugees could be

authorized to engage in employed or self-employed activities immediately after
their refugee status was granted to them,84 that right was significantly qualified for
beneficiaries of subsidiary protection as the ‘situation of the labour market’ could
be taken into account, including for possible prioritization of access to employ-
ment for a limited period of time’ which was to be determined in accordance with
national law; and subsidiary protection beneficiaries had to have access to a post
for which they had received an offer ‘in accordance with national rules on pri-
oritization in the labour market.’85 Further differentiation was permitted on the
right of subsidiary protection beneficiaries to social welfare and health care, both
of which could be limited to ‘core benefits’ that would then have to be provided at
the same levels and under the same eligibility conditions as nationals.86 Another
limitation of the original Qualification Directive, that many have raised as being
particularly problematic, was the personal scope of the refugee definition con-
tained in the Directive. The definition was confined to TCNs and stateless persons
which was inconsistent with the Geneva Convention definition. This limitation was
rooted in old Article 63(1)(c) EC, i.e. the legal basis for adopting the Directive.
The foregoing analysis seems to suggest that while the 2004 Qualification
Directive emphatically affirmed the Geneva Convention as the cornerstone of
refugee protection, the obligations set out in the Convention were perceived as
constraints.87
In 2009 the European Commission issued a proposal to recast the Directive.88
The Recast proposal aimed at addressing inconsistencies, achieving a higher level
of harmonization and ensuring coherence with the jurisprudence of the ECJ and
the ECtHR.89 Negotiations between the European Parliament and the Council led
to the adoption of the Recast Directive in December 2011.90 Hence, of the ‘‘core’’
EU asylum Directives, this is the first major piece of legislation to have been
adopted under the co-decision procedure.91 Not only has the legal regime changed
84
See Article 26(1) of the 2004 Qualification Directive.
85
See Article 26(3) of the 2004 Qualification Directive.
86
See Article 28(2) and 29(2) of the 2004 Qualification Directive. For a definition of ‘core
benefits’ see Recital 34 of the Preamble to the 2004 Qualification Directive which states that the
former cover ‘at least minimum income support, assistance in case of illness, pregnancy and
parental assistance, in so far as they are granted to nationals according to Member States’
legislation.
87
See Da Lomba (2011), see footnote 70, at p. 62.
88
See European Commission (2009), see footnote 81 in Chap. 2.
89
See European Commission (2009), Explanatory Memorandum to the 2009 Qualification
Recast Proposal, at pp. 2–4.
90
See Ref. [47].
91
Special opt-out arrangements apply to Ireland and the UK which decided not to opt into the
Recast Directive. These two Member States continue to be bound by the provisions of the 2004
version of the Directive, see Recital 50 of Directive 2011/95/EU.
since the adoption of the original Qualification Directive, but the new Qualification
Directive has seen several significant changes from the original.
The new Qualification Directive contains some visible improvements. First,
there is greater acknowledgment of gender-specific forms of persecution and the
inclusion of gender identity as a potential ground for protection.92 It also includes
a clear commitment to take the best interest of the child into account93 and there is
a broader notion of ‘‘family members’’ so as to include married minor children
among the beneficiaries of international protection, which puts the Qualification
Directive better in line with the international obligations deriving from the 1989
United Nations Convention on the Rights of the Child as well as with the ECtHR
case-law. However, the proviso that family ties have to exist already in the country
of origin remains.94 In addition, it approximates the content of rights granted to
beneficiaries of subsidiary protection and refugees in many areas such as access to
employment and to health care.95
Nevertheless, certain significant gaps and inconsistencies remain. The new
Directive does not broaden the personal scope of the Directive and continues to
provide that only ‘‘third-country nationals and stateless persons’’ can qualify as
refugees or beneficiaries of subsidiary protection.96 A broadening of the personal
scope would have ensured a closer alignment with the Geneva Convention and in
particular with the principle of non-discrimination on grounds of nationality.97 In
addition, it does not address the concerns raised in relation to the grounds for
‘‘serious harm’’ necessary for being eligible for subsidiary protection in Article
15(c) and the apparent ‘‘oxymoron’’ created by the uncomfortable pairing of
‘‘indiscriminate violence’’ and ‘‘individual threat’’ in the same provision. In par-
ticular, despite the lack of clarity and ambiguity of the disposition, the notion of
92
See Recital 30 of the 2011 Qualification Directive which states that: ‘It is equally necessary to
introduce a common concept of the persecution ground ‘‘membership of a particular social
group.’’ For the purposes of defining a particular social group, issues arising from an applicant’s
gender, including gender identity and sexual orientation, which may be related to certain legal
traditions and customs, resulting in for example genital mutilation, forced sterilisation or forced
abortion, should be given due consideration in so far as they are related to the applicant’s well-
founded fear of persecution,’ Article 4(3)(c) (assessment of an application for international
protection), Article 9(2)(f) (acts of persecution), Article 10(1)(d), final subpara. In relation to the
latter provision, Ippolito argues that better compliance would have been achieved by explicitly
providing that the criteria in Article 10(1)(d) for determining the concept of ‘‘membership of a
particular social group’’ have to be considered as alternative and not cumulative requirements, see
Ippolito and Velluti (2011), see footnote 55 in Chap. 2, at 37.
93
See Recitals 18, 19 and 38, Article 20(5) (general rules on the content of international
protection), Article 31(4)(5) (unaccompanied minors), of the 2011 Qualification Directive.
94
See Article 2(j) of the 2011 Qualification Directive.
95
This is mostly evident in Chapter VII on the content of international protection. In some
instances, however, there are still differences, see e.g. Article 24 of the 2011 Qualification
Directive on residence permits.
96
See e.g. Articles 1 and 2 of the 2011 Qualification Directive.
97
See Article 3 of the Geneva Convention.
‘‘individual threat’’ provided in Article 15(c) has been left untouched, which
makes it difficult to include in the concept of ‘‘protection’’ all categories of persons
in need of ‘‘protection’’ but who do not qualify as refugees.98 Even though the
provision includes two contradictory concepts, that of ‘‘indiscriminate violence’’
and ‘‘individual threat’’, which AG Maduro has described as ‘‘prima facie irrec-
oncilable’’,99 the European Commission, as explained in the Impact Assessment of
the Proposal,100 considers that the jurisprudence of the ECJ removes any doubts as
to the interpretation of the term ‘‘individual,’’ specifically in relation to whether
Article 15(c) requires a higher level of proof than Article 15(a) and (b), and
whether the provision’s scope is broader than that of Article 3 ECHR. In Elgafaji
the ECJ interpreted the concept of ‘‘individual threat’’ quite broadly101 and in so
doing it mitigated the potential negative effects of Recital 34 of the Directive.102 In
spite of this broad approach, the Court has defined the existence of such a threat as
exceptional and thus it permits national courts to interpret the requirement
imposed by Article 15 in an excessively narrow sense.103
Moreover, as explained by Eaton104 the definition of ‘‘protection’’ has been
modified; substituting the two-part Article 8 definition found in the original
Directive for three definitions, two contained in 8(1)(a) and one in 8(1)(b). The
Recast Article 8(1)(a) definition remains largely unchanged from the original,
which referred to a denial of status based on no well-founded fear or no risk of
serious harm, while the recast 8(1)(b) definition simply refers back to the Article 7
definition of protection. The provisions contained in Article 8(1)(a) and 8(1)(b) are
disjunctive, suggesting a choice of standards between (a) or (b).105 The Recast
seems to allow a choice between 8(1)(a) and 8(1)(b) standards, which would seem
to discourage harmonization, as status determination authorities, motivated by
judicial conservatism or simple inertia, can simply opt for the original definition
under which Member States have operated since 2004 and which lives on in
Article 8(1)(a), rendering 8(1)(b) effectively a dead letter.106 Additionally—as
explained further below- the Recast does little to cure longstanding problems with
the internal protection alternative (IPA) in terms of its accordance with interna-
tional refugee law. Article 8 allows Member States to consider IPA as ‘part of the
assessment of the application for international protection.’ Despite the fact that
98
While Article 15(a) is based on the 6th and 13th Protocol of the ECHR and Article 15(b) may
be considered an exact copy of Article 3 ECHR. Article 15(c) covers broad situations of general
violence, a feature which is not covered explicitly in the provisions of the ECHR.
99
See AG Maduro Opinion in C-465/07 Elgafaji v. Staatssecretaris van Justitie [2009] ECR I-
921, para 31.
100
See Ref. [48].
101
See Case C-465/07 Elgafaji v. Staatssecretaris van Justitie [2009] ECR I-921, para 43.
102
See Ippolito commentary in Ippolito and Velluti (2011), see footnote 55 in Chap. 2, at 43.
103
Ibidem, at 44.
104
See Eaton (2012), see footnote 68.
105
See Eaton (2012), see footnote 68, at 766.
106
Idem.
scholars have cautioned against linking the IPA determination to the well-founded
fear clause, due to the risk that this allows IPA to be used as a ‘‘threshold con-
dition’’ for accessing international protection,107 the Qualification Directive (both
the original Article 8 and the Recast Article 8(1)(a)) seems to do exactly this. The
potential risk is that the initial refugee status determination could be denied on the
grounds of a protection alternative. This kind of ‘‘short cut’’ to status denial based
on IPA can skip the critical analysis of the conditions that lead to the applicant
fleeing in the first place.108 Further, such use of the IPA is contrary to UNCHR’s
position.109
To sum up, there are inconsistencies in applying the IPA analysis within Europe
and by simply adding a new test in the Recast Qualification Directive it seems
unlikely that it will succeed in generating greater harmonization in the EU.
3.3 The Recasting of the Asylum Procedures Directive:

Effective, Fair…or Neither?
Among the key legislative measures in the field of asylum, the Asylum Procedures
Directive is probably the one that best illustrates the underlying tensions in this
area and thus the difficulties encountered in reaching an agreement on its exact
content. To date, its interpretation and application has been complicated by a
number of incongruities and inconsistencies related to the troublesome legislative
history of the Directive.110 This state of affairs is further confirmed by the Euro-
pean Commission’s adoption of a new Recast Proposal in 2011111 amending the
first Recast Proposal of 2009.112 In June 2013, the European Parliament in plenary
session endorsed the draft of the Council of Ministers on the recasting of the
Asylum Procedures Directive and at the time of writing there is an agreed finalized
text.113 While retaining some elements of the 2009 recast, the Amended draft
introduces significant changes to accommodate concerns expressed by the Council
of Ministers and individual Member States in relation to abuses of national asylum
systems and cost-effective procedures. In general terms, the new text constitutes a
weak attempt to strike a balance between Member States’ practical requirements
and those stemming from international law and the case law of the ECJ and the
107
See Eaton (2012), see footnote 68, who also examines extensively academic commentary on
this issue.
108
See Ref. [49], at p. 371.
109
See Ref. [50].
110
See Ref. [51], at pp. 1257–1258.
111
See Ref. [52].
112
See Ref. [53]. The UK and Ireland have opted out of the recast Directive.
113
See Refs. [54–56]; for the agreed text visit: www.statewatch.org/news/2013/mar/eu-council-
procedures-7695-13.pdf.
ECtHR. The final compromise text contains a number of strengthened procedural

guarantees. However, it illustrates the difficulty of harmonizing administrative
procedures rooted in diverging and longstanding national legal traditions.114 While
the final text may be said to represent a positive step towards establishing common
procedures for the granting or withdrawing of international protection as per
Article 78 (2)(d) TFEU, its provisions overall are insufficient for establishing
common procedures for the granting or withdrawing of a ‘uniform status […] valid
throughout the Union’115 because of the many derogations that it still permits. In
its comments on the 2011 amended recast proposal UNHRC argues that while the
use of an instrument like a Directive was congruous for the achievement of
‘‘minimum standards,’’ namely the declared purpose of the first phase of CEAS,
the establishment of ‘‘common procedures’’ and of a ‘‘uniform status of asylum
valid throughout the Union’’ requires the use of a Regulation which has direct
effect and is directly applicable in the Member States; not a legislative instrument
such as the Directive which allows for the adoption of divergent national
measures.116
Among the positive changes there is the procedural guarantee that all asylum-
seekers will now, in principle, have the right to be heard in an interview and to
submit comments and clarifications after the interview and before a decision is
taken on their claim.117 Article 31(5)(b) Recast includes the possibility for
Member States to prioritize the examination of an application ‘where the applicant
is vulnerable within the meaning of Article 22 of the Reception Directive or in
need of special procedural guarantees, in particular unaccompanied minors.’
In addition, asylum-seekers in an accelerated procedure must now at least be
given the opportunity to request in court to stay in the territory while they appeal
against a negative decision on their case.118 Another positive change is the
modified definition of ‘‘applicant in need of special procedural guarantees’’ ins-
serted in the Directive119 and the explicit reference to the fact that this particular
category of applicants should be provided with adequate support, including suf-
ficient time, in order to create the conditions necessary for an effective access to
procedures and presenting the elements needed to substantiate the application for
international protection. In the Commission’s 2011 amended recast proposal,
114
For critical academic commentary, see in particular Costello (2005), see footnote 78 in Chap.
2; J. Vedsted-Hansen (2011), see footnote 66 in Chap. 2.
115
See Article 78 (2)(a) TFEU, emphasis added; see also Article 78 (2) (b) TFEU and Article 1
Recast.
116
See Ref. [57], p. 5.
117
See Articles 14–17 Recast.
118
See Article 46(6), (7)(a), (8) Recast.
119
See Recital 23 which includes in this category an applicant ‘who due to inter alia their age,
gender, sexual orientation, gender identity, disability, serious illness, mental disorders or
consequences of torture, rape or other serious forms of psychological, physical or sexual
violence’ may be in need of special procedural guarantees.
3.3 The Recasting of the Asylum Procedures Directive 57
Article 2(d)120 included a clear definition of such applicants which disappointingly

is not reproduced in the compromise text. The new provision merely refers to ‘an
applicant whose ability to benefit from the rights and comply with the obligations
provided for in this Directive is limited due to individual circumstances.’121 The
revised definition, along with the new formulation of Article 24 Recast, does not
create a new status category and a case-by-case assessment is necessary to
establish whether and applicant falls within the scope of the above definition.122
As to accelerated procedures, according to Article 24(3) Recast applicants in need
of special procedural guarantees cannot be subject to them, this being in line with
paragraph 1 of the same Article which provides for sufficient time and relevant
support to present the elements of their application.
This positive development, however, is in contrast with other aspects which
arguably reduce procedural safeguards. In particular, with regard to vulnerable
groups such as unaccompanied children and victims of torture, there will be no
exemption from accelerated and border procedures.123 Despite the fact that
establishing stronger guarantees for vulnerable asylum-seekers was one of the key
objectives of the asylum package, the standards have been watered down
throughout the process. In addition, Article 25(4) Recast does not foresee the
provision of legal assistance free of charge to unaccompanied minors at first
instance. However, in light of the particular vulnerability of unaccompanied
minors, the possibility of limiting free assistance at first instance to the provision
of legal information on the procedure and to the explanation of reasons in fact and
in law, in the case of a negative decision, is disconcerting. Free legal assistance in
first instance provided to unaccompanied minors should have also encompassed
the preparation of procedural documents and legal representation, including par-
ticipation in the personal interview.124 More generally, no real progress has been
made in strengthening the guarantees for ensuring that asylum-seekers have access
to legal assistance in practice.125 This limitation is in stark contrast with the
provisions included to address Member States’ concerns of preventing misuse of
asylum procedures. For instance, procedures have been simplified,126 training for
120
This was a provision requested by the European Parliament and within the Council of
Ministers it was jointly requested by the German, French and United Kingdom, see Refs. [58, 59].
121
Emphasis added.
122
See UNHCR (2012), see footnote 116, p. 6.
123
See Article 24(3) subpara 2 Recast in relation to applicants in need of special procedural
guarantees, which as worded does not exclude the possibility that they can be applied, and Article
25(6)(a) and (b) in relation to unaccompanied minors.
124
125
See provisions in Articles 20–23 Recast, where there is a prevalence of the use of the term
‘‘may’’ giving Member States a fairly wide margin of discretion and thus allowing for differences
between the Member States.
126
E.g. the ‘‘Specific procedures’’ in Article 24 Recast has been repealed.
the determining authority is envisaged127 and obligations for applicants for

international protection to cooperate with the competent authority have been
strengthened.128 In addition, the new Directive envisages the possibility of con-
sidering fraudulent applications in accelerated procedures and for declaring them
manifestly unfounded.129
With regard to time limits for examination procedures, the new rules introduce
a standard six-month deadline for Member States to decide on asylum applica-
tions.130 They can postpone their decisions only for a further nine months, in three
limited and now well-defined cases.131 However, with regard to the second sce-
nario, namely, a large number of third country nationals or stateless persons
simultaneously requesting international protection, no definition is provided and
there is a risk of unjustified prolongation of procedures, with associated costs and
uncertainties for all concerned. Member States may also postpone starting the
procedure if there is a ‘‘temporarily uncertain situation’’ in the country of origin.132
In such cases national authorities would have to review their situation assessment
at least every six months. In any event, it is provided that Member States will have
to conclude the procedure within a maximum time-limit of twenty-one months
from the lodging of the application. The insertion of this derogation is problematic
and it is at variance with international refugee law and EU law. It is not in line with
the case-law of the ECJ and could trigger increased costs in procedures and
reception entitlements, which Member States are bound to continue to afford for
the duration of the ‘‘uncertain’’ situation.133 Efficient and fair procedures for the
determination of international protection need to be within a reasonable time.134
127
See Article 4(3) Recast. The list of subjects to be included in the mandatory training for the
determining authority has been linked to the list of subjects in Article 6(4) of the Regulation
establishing EASO (Regulation 439/2010). Unlike the 2009 recast, however, the list does not
include evidence assessment, which is one of the modules of the European Asylum Curriculum
(EAC) and is part of the training established and managed by EASO and Member States are only
required to ‘take into account’ the EAC and the training established by EASO. Divergent
outcomes are thus still possible and do not serve the purpose of harmonization.
128
129
See 31(6)(e) Recast.
130
131
132
See Article 31(3), last indent, Recast.
133
134
E.g. see C-327/02, Panayotova and others v. Minister voor Vreemdelingenzaken en
Integratie, ECR [2004] I-11055; see also C-432/05 Unibet (London) Ltd and Unibet
(International) Ltd v Justitiekanslern ECR [2007] I-2271, where the Court said that ‘detailed
procedural rules governing actions for safeguarding an individual’s rights under Community law
[…] must not render practically impossible or excessively difficult the exercise of rights conferred
by Community law (principle of effectiveness)’ (para 43) and Case C-506/04, Wilson v Conseil de
l’ordre des Avocats du Barreau de Luxembourg ECR [2006] I-8613, where the Court held that [a
provision of a Directive] ‘requires actual access within a reasonable period […] to a court or
tribunal as defined by Community law, which is competent to give a ruling on both fact and law’
(para 60); see also Article 47 of the EU Charter.
Arguably, such a prolonged postponement of the enjoyment of the right to asylum

could potentially breach Article 18 of the EU Charter which provides that the right
to asylum shall be guaranteed in accordance with the Geneva Convention. Both
this Convention and EU asylum law envisage scenarios where an ‘‘uncertain sit-
uation’’ in the country of origin ends. When the circumstances in connection with
which the applicant has been granted international protection have ceased to exist,
cessation or withdrawal of his/her status can be invoked.135 Rather than post-
poning the conclusion of the procedure, Member States should process applica-
tions, grant international protection where required and make use of EU asylum
rules to withdraw international protection when the circumstances in connection
with which the applicant has been granted international protection cease to exist.
With regard to accelerated procedures,136 a wide range of safeguards has been
included for claims that are channelled through such procedures. These include: no
omission of the personal interview in such cases,137 reasonable time limits for the
adoption of the decision and an adequate and complete examination, including of
manifestly unfounded claims,138 reasonable time limits for appeal,139 and the
possibility to ask for the suspensive effect of an appeal.140 With regard to border
claims, Article 4(2) Recast provides that only the designated determining authority
shall have the prerogative to examine the claim or to interview the applicant at the
border. Moreover, according to Article 31(6)(e) Recast, the examination of a claim
may be accelerated if the ‘applicant has made clearly false or obviously improb-
able representations which contradict sufficiently verified country of origin
information, thus making his/her claim clearly unconvincing’ in relation to whe-
ther she/he qualifies for international protection. UNHCR criticizes the insertion of
the term ‘‘improbable representations’’ as it does not follow necessarily that his/her
claim is clearly abusive, fraudulent or unfounded.141 In addition, Article 31(6)(g)
Recast allows for an examination of a claim to be accelerated if ‘the applicant may
for serious reasons be considered a danger to the national security or public order
of the Member State, or the applicant has been forcibly expelled for serious
135
See Ref. [60]; see also Articles 11 and 12 of the Qualification Directive and Articles 44 and
45 of the Asylum Procedures Directive; see also Joined Cases C-175/08, C-176/08, C-178/08 and
C-179/08 Aydin Salahadin Abdulla and Others v Bundesrepublik Deutschland ECR [2010] I-
01493, on cessation and revocation of refugee status (Article 11 of the Qualification Directive),
Case C-31/09 Nawras Bolbol v Bevándorlási és Állampolgársági Hivatal ECR [2010] I-05539
and Joined Cases C-57/09 and C-101/09 Germany v B and Germany v D and others ECR [2010 I-
10979], on exclusion clauses (Article 12 of the Qualification Directive).
136
See Article 31(6) Recast, which permits that an examination procedure, in accordance with
the basic principles and guarantees of Chapter II, be accelerated and/or conducted at the border in
accordance with Article 43 Recast in seven exhaustive cases.
137
138
See Article 31 (7) Recast.
139
140
141
reasons of public security or public order under national law.’ As such, Article
31(6)(g) Recast reintroduces Article 23(4)(m) of the original Asylum Procedures
Directive. Given that what constitutes ‘‘danger’’ as well as ‘‘national security’’ and
‘‘public order’’ are subject to a wide margin of appreciation the inclusion of such a
ground for accelerated procedures is questionable.142
With regard to the ‘‘Safe Third Country’’ (STC),143 ‘‘Safe Country of Origin’’
(SCO)144 and ‘‘First Country of Asylum’’ (FCA), the compromise text of the
Directive retains these concepts with some changes rather than removing them
completely, despite their alleged violation of international refugee law.145 Asy-
lum-seekers may see their application rejected in the admissibility procedure on
the grounds of the above concepts, the meaning of which is rather ambiguous.
Member States may justify the inadmissibility of asylum applications made by
individuals who, before arriving, have passed through countries considered safe
especially if made at the border. The 1951 Geneva Convention, and in particular,
the non-refoulement clause in Article 33, does not forbid them from doing so.
Specifically, Member States may reject an application when asylum-seekers are
deemed protected—either in fact or by law- or could have obtained protection in
those countries.
The first difficulty encountered with these concepts is determining whether a
country is ‘‘safe’’ particularly with regard to SCO. The Directive no longer
includes a common list of STCs, which was included in an Annex by the Coun-
cil146 and Article 36 Recast explicitly refers to the need to conduct an individual
examination of the application and that the asylum-seeker has not submitted ‘any
serious grounds for considering the country not to be a safe country of origin in
his/her particular circumstances and in terms of his/her qualification as a refugee
or a person eligible for subsidiary protection in accordance with the Qualification
Directive.’ In addition, Recital 30 provides that a key consideration for the well-
foundedness of an application for international protection is the safety of the
applicant in his/her country of origin. A third country can be regarded as a SCO by
a Member State for a particular applicant unless he/she presents counter-
142
Idem.
143
See Articles 38 (STC) and 39 (European STC) of the revised Directive.
144
The generic formulation of Article 30(5) of the original Asylum Procedures Directive and of
Article 37 (3) of the new Directive permits wide divergences in the information sources used by
Member States to determine SCOs. This fact, combined with major differences in the designation
criteria applied, inevitably results in inconsistency in the designation of SCO; see UNHCR
(2010), see footnote 150 in Chap. 2, which includes a comparative study of three Member States
with a public national list of safe country of origin. At the time of UNHCR’s research, France had
designated 15 countries as safe, Germany 29 and the United Kingdom 24. Little correlation was
found between the lists and only one country (Ghana) appeared on the list of all three States—and
for the United Kingdom, Ghana was considered a SCO for male applicants only; see also Costello
(2005), see footnote 78 in Chap. 2, at 66–67.
145
For critical commentary, Refs. [61, 62]; S. Da Lomba (2004), see footnote 20; Refs. [63–67];
Ippolito and Velluti (2011), see footnote 55 in Chap. 2, at 54–56; Refs. [68, 69].
146
See old Article 29 of the original Directive, now repealed.
indications. Hence the latter no longer need to be ‘‘serious.’’ In a similar vein,

Recital 33 refers to ‘‘valid,’’ and no longer ‘‘serious,’’ reasons to consider the
country not to be safe in his/her particular circumstances, the designation of the
country as safe can no longer be considered relevant for him/her. Moreover,
Article 16 Recast concerning the content of the personal interview does seem to
provide the possibility for the applicant to use any such necessary counter-indi-
cations given that it states that ‘the applicant is given an adequate opportunity to
present elements needed to substantiate the application in accordance with Article
4 of the Qualification Directive’ concerning assessment of facts and circumstances.
However, the Recast Directive still includes national designation of third
countries as SCO.147 Some significant changes have been introduced to take into
account the fact that the complexity of the decision as to whether a third country is
a SCO may lead to errors and also that the politicized decision-making process
may often lead to foreign policy concerns influencing the objectivity of the
assessment.148 Article 37(2) Recast envisages a regular review of the situation in
third countries designated as safe in consideration of the fact that human rights
situations change rapidly and thus lists of SCO should be subject to constant and
regular review.149 Article 37(3) Recast provides that ‘the assessment of whether a
country is a safe country of origin in accordance with this Article shall be based on
a range of sources of information, including in particular information from other
Member States, the European Asylum Support Office, the UNHCR, the Council of
Europe and other relevant international organizations.’ With regard to FCA, the
new formulation in Article 35 Recast provides the applicant with the possibility to
rebut the presumption of safety in cases where the FCA concept is applied.
However, the entire burden of rebutting this presumption rests on the applicant. As
to the notion of the European STC, Article 39 Recast requires Member States
periodically to inform the Commission about the countries to which the European
STC is applied. However, UNHCR rightly continues to question the utility and
consistency with international refugee law of the European STC concept also in
consideration of the fact that no minimum principles and guarantees underlie the
procedure under Article 39 Recast.
On the basis of these concepts, access to territory and to an asylum procedure
may be denied altogether to asylum-seekers who may have protection needs.
147
See Articles 36(2) and 37 of the revised Directive.
148
See Costello (2005), see footnote 78 in Chap. 2, at 66.
149
See e.g. NA. v. The United Kingdom, Appl. No. 25904/07, paras 112 and 119, where the
ECtHR stated that ‘A full and ex nunc assessment is called for as the situation in a country of
destination may change in the course of time. Even though the historical position is of interest in
so far as it may shed light on the current situation and its likely evolution, it is the present
conditions which are decisive and it is therefore necessary to take into account information that
has come to light after the final decision taken by the domestic authorities;’ see also Article 46(3)
Recast which provides that ‘Member States shall ensure that an effective remedy provides for a
full and ex nunc examination of both facts and points of law.’
Such a denial could be at variance with international refugee law. Costello

cogently predicted back in 2005 that:
the FCA, STC and SCO provisions will undermine both access to and the integrity of
asylum procedures in the enlarged EU. They will increase the likelihood of error in asylum
determinations and inevitably lead to refoulement as refugees are deported or refused
access to proper procedures. As such, the Directives embodies lowest common denomi-
nator law-making at its worst,150 as the varied exclusionary procedural practices of the
Member States have come to be incorporated for the first time in a legally binding
instrument.151
The legitimacy of these decisions is questionable considering the strong dif-

ferences that exist in the standard of protection between the EU and third coun-
tries, both of origin and transit. Moreover, there is no uniform guarantee for
asylum-seekers in relation to admissibility, accelerated and border procedures and
thus no certainty that the STC concept will be applied to them according to the
same standard of safety across the EU.152 Morgades argues that returning asylum-
seekers who apply for asylum in a Member State but who have not arrived there
directly from the country where persecution is feared creates the ‘‘externalization
of the asylum function,’’ on the basis of which the responsibility for asylum for
people who have not arrived directly in a Member State is transferred to other
countries where asylum-seekers have not applied for protection.153 Problems of
compliance with international human rights standards as well as Article 18 of the
EU Charter therefore remain.154
From the foregoing analysis, it may be argued that in spite of the changes
introduced by the Recast Directive, there is still an overwhelming concern for
preserving Member States’ prerogatives and powers with a focus on efficiency
rather than the strengthening of asylum-seekers procedural safeguards.155
3.4 The Revised Reception Conditions Directive: Towards

More Harmonized and Dignified Standards of Living?
Fair and efficient reception conditions for asylum-seekers during the examination
of their application for international protection constitute an essential part of any
asylum system156 in that they guarantee that applicants are prepared for both
150
Emphasis added.
151
See Costello (2005), see footnote 78 in Chap. 2, at 36–37.
152
See UNHCR (2010), see footnote 150 in Chap. 2.
153
See Ref. [70]; on the issue of extraterritorial processing, see e.g. S. Kneebone, C. McDowell
and G. Morrell (2006), see footnote 18, at 507–508; Ref. [71–74].
154
See Ippolito and Velluti (2011), see footnote 55 in Chap. 2, at 54–56.
155
See Ref. [75], at 25–38.
156
See Ref. [76], at p. 3.
3.4 The Revised Reception Conditions Directive 63
possible outcomes of the asylum procedure, either integration into the host society
upon recognition or sustainable and dignified return after a full examination of
their claim concludes that they are not in need of international protection.157 At the
same time adequate reception conditions are a conduit for a fair and efficient
asylum procedure.158
The process of recasting the Reception Conditions Directive was troublesome
and difficult as the one for the Asylum Procedures Directive and the agreed text of
the Council and the European Parliament presents similar gaps and inconsisten-
cies. In December 2008, the European Commission presented a recast proposal for
the Reception Conditions Directive,159 aimed at harmonizing divergent national
practices, in order to ensure that asylum-seekers would enjoy an equivalent
standard of reception conditions in all Member States.160 The European Parliament
adopted its position on that proposal in May 2009.161 However, in June 2011 after
no final agreement was reached on the text in the Council of Ministers, the
European Commission published an amended recast proposal of the Reception
Conditions Directive.162 In June 2013, as part of the EU asylum package for the
second phase of CEAS,163 the European Parliament endorsed the political
agreement of the Council of Ministers.164
Critically, the amended Commission Recast Reception Conditions Directive
proposal (on which the agreed text of the Council and the European Parliament is
largely based) reduces the safeguards for asylum-seekers with regard to adequate
reception conditions in a number of key provisions compared to the 2008 Com-
mission Recast proposal. Additionally, it increases the possibility for Member
States to derogate from the guarantees it is supposed to set. Arguably, the initial
aim to ensure higher standards of reception conditions by way of harmonization
has been seriously watered down.
Among the positive changes introduced, there is the extension of the personal
scope of the Directive to applicants for subsidiary protection165 and clarification of
157
Idem.
158
Idem.
159
See Refs. [77–79]. The Proposal drew on several soft law measures adopted by the UNHCR
and the Council of Europe Committee of Ministers on measures of detention of asylum-seekers.
See e.g. Refs. [80, 81]; and Ref. [82].
160
Denmark, Ireland and the United Kingdom will not be bound by the new Directive, but the
UK will continue to apply the 2003 rules.
161
See Ref. [83].
162
See Ref. [84].
163
For press releases and news reports on the EU asylum package, see European Commission
(2013) and ECRE (2013), see footnote 113.
164
The text of the political agreement endorsed by the European Parliament in plenary session in
June 2013 is available at: http://register.consilium.europa.eu/pdf/en/12/st14/st14112-re01.en12.
pdf.
165
See Article 2(a) Recast.
its geographical scope by explicitly including transit zones in its scope166; the
extension of the definition of family members167; minor and dependent adult
applicants will enjoy more guarantees to be housed jointly with family members
and relatives168; the obligation for Member States to ensure access to the labour
market no later than 9 months after the application for international protection is
lodged as this will help asylum-seekers to be more integrated in the society of the
host country and make them more self-sufficient169; the limitation of circum-
stances in which reception conditions can be entirely withdrawn as this will reduce
the circumstances in which asylum-seekers may become destitute170; as to health
care, the Recast Directive explicitly includes essential treatment of serious mental
disorders and, where needed, appropriate mental health care171; the strengthening
of safeguards for vulnerable groups172; and Member States must ensure that
persons who have been subject to torture, rape or other serious acts of violence
receive the necessary treatment, in particular access to appropriate medical and
psychological treatment or care. Furthermore, those working with such persons
must have had, and must continue to receive, the appropriate training and be bound
by confidentiality rules.173 However, in spite of these improved reception condi-
tions the Recast Directive also seems to be lowering down certain standards. For
instance, with regard to family members Article 2(c) Recast requires the family
ties to have been established already in the country of origin. This fails to
accommodate family ties that may have been formed while residing in a third
country during flight and may prevent refugees from enjoying the right to family
unity contrary to the Geneva Convention.174
166
167
See Article 2 (c) Recast.
168
See Recital 18(a), Articles 12, 18(2)(a)(c) Recast.
169
170
171
172
See Articles 21–25 Recast.
173
174
The Refugee Convention provides protection for the refugee family in various articles
without explicitly mentioning family unity or reunification, e.g. Article 4 refers to refugees’
‘freedom as regards the religious education of their children’; Article 12(2) provides that ‘[…]
rights attaching to marriage, shall be respected […]’; Article 22 concerns the public education of
children in elementary school and beyond; para 2 of the annexed schedule, concerning travel
documents, notes that children may be included in the travel document of a parent or, in
exceptional circumstances, of another adult refugee. Refugees’ ‘‘essential right’’ to family unity
was the subject of recommendations approved unanimously by the Conference of Plenipoten-
tiaries that adopted the final text of the Convention, UN Conference of Plenipotentiaries on the
Status of Refugees and Stateless Persons, Final Act of the United Nations Conference of
Plenipotentiaries on the Status of Refugees and Stateless Persons, 25 July 1951, A/CONF.2/108/
Rev.1, available at: http://www.refworld.org/docid/40a8a7394.html. Recommendation B; for
further analysis of family unification and refugees, see Ref. [85].
As to material reception conditions, Article 17(5) Recast proposes a system

according to which the amount of material reception conditions must be determined
on the basis of points of reference established by each Member State in law or in
practice to ensure adequate standards of living for nationals. The minimum level of
social welfare assistance is mentioned by way of example of such point of refer-
ence. However, Article 17(5) Recast also allows Member States to ‘grant less
favourable treatment to asylum applicants compared to nationals in this respect,
where it is duly justified.’ This may potentially lead to Member States granting
unacceptably low levels of material reception conditions as the extent to which
treatment may be less favourable compared to nationals is not qualified and could
well be below what is an adequate standard of living as required under Article 17(1)
Recast. With regard to the possibility of Member States’ withdrawing material
reception conditions, although Article 20(1) Recast identifies clear grounds for
enabling Member States to withdraw them it still leaves them with a wide margin of
discretion. The withdrawal or reduction of reception conditions below an adequate
standard of living is not consistent with the requirements of human rights law. The
possibility for Member States to completely withdraw reception conditions should
only be allowed where it is shown that the asylum-seeker concerned has sufficient
means of support ensuring an adequate standard of living.175
The most controversial aspect of the Reception Conditions Directive is the
detention of asylum-seekers176 and consequently many of the changes introduced
aim at improving various aspects of the detention rules which are considered to be
at variance with international refugee and human rights law.177 The detention of
asylum-seekers for immigration control purposes—apart from the most excep-
tional circumstances as prescribed by international law and standards- is inherently
undesirable. It places undue hardship on asylum-seekers and in the great majority
of cases can be replaced by less repressive alternatives.178 Moreover, the use of
detention is not conducive to good integration in the country of asylum as the first
experience of the asylum-seeker is one of deprivation of liberty, which can often
be prolonged; it also delays the start of such integration.179 Non-custodial alter-
natives to detention are very effective in achieving the legitimate purposes for
which they can be used, while being less restrictive to asylum-seekers’ rights.180
175
See MSS v. Belgium and Greece, Application No. 30696/09, Judgment of 21 January 2011,
para 263, where the ECtHR held that the fact that an asylum-seeker had spent months in living in
a state of extreme poverty, unable to cater for his most basic needs in combination with prolonged
uncertainty and the total lack of any prospects of his situation improving amounted to a violation
of Article 3 ECHR.
176
The relevant provisions are clearly modeled on the corresponding provisions on detention of
irregularly staying third country nationals for the purpose of removal in the Returns Directive, see
Articles 15, 16 and 17 of Directive 2008/115/EC.
177
For critical commentary on the issue of detention, see Refs. [86–88].
178
See Ref. [89].
179
Idem.
180
Idem.
Nevertheless, immigration detention is increasingly routine, even automatic across

Europe, with asylum-seekers being an easy target for detention.181 Often detention
is justified on the basis that categories of immigrants, including asylum-seekers,
are ‘‘illegal’’ either entering a state’s territory without authorization or in staying
after they have been told to leave.182 While International human rights law limits
detention, the level of protection afforded to migrants is often weaker than in other
contexts as states’ migration control powers remain intact in this area, reflecting an
uneasy tension between the universal right to liberty and states’ border control
prerogatives.183
Starting with the positive changes, Recital 15 Recast provides that detention of
asylum-seekers should be applied in line with the underlying principle that a
person should not be held in detention for the sole reason that he/she is seeking
international protection, in accordance with Member States’ international legal
obligations and in particular Article 31 of the Geneva Convention.184 It also states
that detention should be subject to the principle of necessity and proportionality
with regard to the manner and to the purpose of such detention. Where an asylum-
seeker is held in detention he/she should be able to have effective access to the
necessary procedural guarantees such as judicial remedy before a national court.
Moreover, Recital 16 Recast states that applicants who are in detention should be
treated with full respect of human dignity and their reception should be specifically
designed to meet their needs in that situation. In particular, Member States should
ensure that Article 37 of the 1989 UN Convention on the Rights of the Child is
applied. Recital 17(a) provides that detention of asylum-seekers should be a
measure of last resort and may be applied only after all non-custodial alternative
measures to detention have been duly examined in order to better ensure the
asylum-seeker’s physical and psychological integrity.
Any alternative measure to detention must respect the fundamental human
rights of asylum-seekers. This is reinforced by Article 8(2) Recast which provides
that the use of detention has to be based on an individual assessment and only if
other less coercive alternative measures cannot be applied effectively. Moreover,
an applicant for international protection can only be detained if at least one of the
grounds listed in Article 8(3) Recast applies. However, Recital 15(b) Recast does
not exclude the application of other grounds such as detention grounds in the
framework of criminal proceedings, applicable in the national legal order unrelated
to the TCN’s or stateless person’s application for international protection. The new
rules on detention also provide important guarantees for detained applicants.
Article 9(1) Recast provides that detention shall be for as short a period as possible
181
See Costello (2012), see footnote 177.
182
Ibidem, at pp. 258–259.
183
Idem.
184
See also new Article 8(1) Recast. Goodwin-Gill notes that ‘comparatively few states have
taken any formal steps to incorporate the exemption from penalties required by Article 31 [of the
Geneva Convention] […]. Even where legislative provisions exist, however, refugees and
asylum-seekers can still face loss of liberty,’ see Ref. [90], at p. 226.
and shall only be maintained for as long as the grounds set out in Article 8(3)
Recast are applicable. Asylum-seekers will be informed in writing about the
reasons for their detention and the ways to challenge it185 and will also be able to
request free legal assistance and representation, in a language they understand or
are reasonably supposed to understand.186 Furthermore, detained asylum-seekers
must have prompt access to rapid judicial review187 and as a rule applicants for
international protection must be detained in special reception facilities.188 If this is
not possible prison accommodation is allowed, but only under the condition that
the applicant is kept separate from criminals. Finally, a regime providing addi-
tional safeguards has been established in relation to the detention of vulnerable
persons and persons with special reception needs.189 Noteworthy is the removal of
any reference to the ill-defined notion of ‘‘continued detention’’ in Article 11
Recast. The Recast Directive specifies that unaccompanied minors shall only be
detained as a measure of last resort and after having established that other less
coercive alternative measures cannot be applied effectively. It shall be for the
shortest period of time and all efforts shall be made to release the detained minors
and place them in accommodation suitable for minors. Moreover, a best interest
assessment has been envisaged in case Member States make use of the possibility
to place an unaccompanied child aged 16 or more in an accommodation centre for
adults as foreseen by Article 24(2), subpara 2 Recast.
However, despite the inclusion of new provisions aimed at strengthening the
procedural guarantees in relation to detention the new Directive still presents some
significant shortcomings. AI points out that under the Recast Directive there is still
a risk of condoning extensive use of detention of asylum-seekers. In particular,
under Article 8 Recast, which sets out the grounds for detention, an asylum-seeker
may be detained in order to ‘determine or verify his identity or nationality.’ This
provision, as worded, goes beyond what is allowed under the UNHCR guidelines
on detention of asylum-seekers,190 which mention the verification of identity only
in cases where identity may be undetermined or in dispute. Article 8(3)(a) Recast
should have stated explicitly that detention on this ground should only be possible
if he or she clearly refuses to cooperate in order to frustrate the process of iden-
tification. With no such reference there is a real risk that it will encourage sys-
tematic detention of asylum-seekers in practice based on the assumption
that detention is in any case necessary in order to allow verification of an asylum-
185
See Article 9(3) Recast, which provides that detention shall be ordered in writing and that the
detention order shall state the reasons in fact and in law on which it is based. This provision is in
line with the jurisprudence of the ECtHR, see e.g. Lokpo and Touré v. Hungary, Application No.
10816/10, Judgment of 20 September 2011, para 24.
186
See Article 9(2) subpara 2 and (5) and (6) Recast and also Article 10(5) Recast.
187
188
189
190
See Ref. [91]; see also Ref. [92], which replace the 1999 Guidelines.
seeker’s identity or nationality.191 ECRE criticizes the fact that asylum-seekers can
be kept in prisons if no specialized detention facilities are available, even though
they would be kept separate from ordinary prisoners.192 The lack of precise time
limits for the detention of asylum-seekers is also questionable. Member States’
discretion on imposing restrictions on the legal aid granted to asylum-seekers193 is
also another limitation of the new Reception Conditions Directive. Article 9(3)
Recast envisages the possibility that the detention order can be in a language that
the asylum-seeker is ‘reasonably supposed to understand.’ Such a standard is not in
line with Article 5(2) ECHR according to which ‘everyone who is arrested shall be
informed promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him.’194 Another disconcerting limitation of the
Recast Directive is that detention in prison accommodation is allowed under
Article 10(6)(a) Recast, where Member States are obliged to resort to such
accommodation in cases where specialized detention facilities are temporarily not
available. As the European Committee for the Prevention of Torture (CPT) rightly
observes, ‘even if the actual conditions of detention for these persons in the
establishments concerned are adequate -which has not always been the case—the
CPT considers such an approach to be fundamentally flawed. A prison is by
definition not a suitable place in which to detain someone who is neither convicted
nor suspected of a criminal offence.’195 Moreover, while minor asylum-seekers
can only be detained as a last resort and unaccompanied minors cannot be kept in
prison or together with adults, detention is still permitted, albeit only in excep-
tional circumstances.196 Hence, it may be argued that in spite of its purported aims
the Directive itself presents ‘the same attachment to detention as a means of
policing the EU border that traditional states have maintained’197 with a persis-
tence of territoriality even in the context of a discourse that aspires to surpass it.198
The foregoing analysis shows that overall the Recast Reception Conditions
Directive does not provide a coherent set of adequate material reception conditions
and procedural guarantees for asylum-seekers, particularly those who are vulner-
able and in need of higher levels of protection. Various contradictions and tensions
beset the Recast Directive impeding it to fully ensure a dignifying standard of
living for asylum-seekers.
191
See ECRE (2011), see footnote 156, at p. 8.
192
See Article 10 Recast; ECRE (2011), see footnote 156, at p. 13.
193
See new Article 9(6) and (7); see further ECRE (2011), see footnote 156, at p. 12.
194
See Conka v. Belgium, Application No. 51564/99, Judgment of 5 February 2002, para 50.
195
See Ref. [93]
196
See further, ECRE (2011), see footnote 156, at pp. 16–18; on the issue of asylum-seeking
children’s detention, see Ref. [94].
197
See Ref. [95], at p. 145.
198
See Ref. [96], at pp. 221–222.
3.5 Challenges to Harmonization: The Absence of a True Dialectic 69
3.5 Challenges to Harmonization: The Absence of a True

Dialectic Between a Rights-Based Approach
and a Migration Control-Based Approach
The reform of key legislative instruments of CEAS overall has not led to signif-
icant changes from an asylum-seekers’ human rights perspective. Clearly, the
challenges posed by the goal of harmonization have been too great for the EU
legislature to overcome, despite attempts to do so, as exemplified by the various
recast processes. Progress in amending the legislation has been stifled by lengthy
and difficult negotiations, the extensive use of measures of flexibility and heter-
ogeneous interpretation and implementation of adopted ‘‘common’’ measures. The
untouched optional derogations and scope for discretionary measures effectively
undermine the pursuit of harmonization.
The root-causes of this status quo are not to be sought in a deliberate unwill-
ingness to act199 but rather in the primacy and strong influence of classical con-
ceptions of state sovereignty and related principles of territorial supremacy and
self-preservation, which impact particularly on asylum decision-making.200
Undeniably, there is a strong relationship between refugee status determination,
the granting of asylum and state sovereignty. This necessary ‘‘bond’’ stems from
the effects and consequences that follow from decisions made in the procedure: the
inclusion of a new member in a (nation-)state’s society, and the very nature and
purpose of the institution of asylum as a means of correcting a state’s failure to
protect its ‘‘own’’ citizens.201 Hence, sovereignty is not merely a legitimacy token
for state action but becomes a state’s claim to determine and protect what con-
stitutes the boundary between the ‘‘inside’’ and the ‘‘outside’’ and establishes the
linkage between political authority and clearly demarcated territories and
borders.202
At the same time, we have seen that not all is lost for those advocating a more
human rights-based approach and that there is scope for optimism. Far from being
some form of dystopian society, the creation and further development of CEAS is
in effect slowly but steadily entrenching a human rights discourse at all levels and
in all spheres of policy-making: Member States clearly have to ‘‘defend’’ their
measures, actions and decisions against a set of fundamental rights’ ‘‘benchmarks’’
enshrined in International refugee law and European human rights law. More
specifically, developments concerning CEAS illustrate the significant problems
posed by the adherence to classical conceptions of sovereignty and its related
paradigms and values.
199
It should be re-called that asylum procedures pertain to state administrative justice and,
consequently, they are judicial procedures that are imbued with strong national cultural and
traditional procedural connotations, see Refs. [97, 98].
200
On the issue of state sovereignty, see above, infra Chap. 1.
201
See Refs. [99, 100].
202
See Refs. [101, 102].
A more apposite approach, therefore, is one which relies on a ‘‘floating’’

conception of sovereignty,203 which takes into account how states are exposed to
mutating global, regional and local processes and how the manner in which
European governance operates in respect of the individual is also necessarily
changing. In this way we acknowledge the need to embrace a more open, reflexive
and cooperative conception of sovereignty.
It would be naïve if not utopian to maintain that change, as suggested above,
should be introduced through the legislative route. An alternative avenue instead,
which is more grounded in reality, is to propose that the pursuit of such objective
be achieved via the judiciary. Legal norms can be subject, by their very nature, to
multiple interpretations because of their required connotations of universality and
generality. Historically, it has often been up to courts to shape and refine the actual
content of legal rules, and in relation to European law, to the European Courts. As
evidenced by many landmark rulings, their jurisprudence has had a truly trans-
formative impact on national legal systems,204 whether directly or indirectly and
whether at the will or against countries’ assent. It is therefore to them that the
present investigation now turns to.
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203
See above, Chap. 2, Sect. 2.1.
204
The study of the impact of the case law of the European Courts on national legal systems is
beyond the scope of the present investigation and the reader is directed to selected literature on
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Chapter 4
The Role of the European Courts
in Ensuring Adequate Standards
of Asylum-Seekers’ Human Rights’
Protection in Europe After Lisbon
4.1 The European Court of Human Rights

and the European Court of Justice as ‘‘Regional
Refugee Law Courts’’
On the basis of a comparative analysis of a series of key asylum cases (most of

which decided around the time of or after the entry into force of the ToL), this
section seeks to critically examine the jurisprudence of the ECJ and the ECtHR in
the field of asylum vis-à-vis the ECHR and the EU Charter, in consideration of
the fact that in Europe these two courts have gradually established themselves as
the two key ‘‘regional refugee law courts.’’ The focus of analysis is centred on the
complex and evolving constitutional relationship between the EU and the overall
system of the ECHR in order to assess the standard of asylum-seekers’ funda-
mental rights protection in Europe. In particular, it examines the legality of and
compatibility with the ECHR and the EU Charter of the main legislative instru-
ments of CEAS—prior to their reform-such as, for example, the Dublin II regu-
lation, the Qualification, Asylum Procedures and the Reception Conditions
Directives. This jurisprudential analysis is particularly necessary in consideration
of the fact that a comparison between the first and the second legislative phase of
CEAS shows that, despite experiencing a major change in its institutional
dimension, EU asylum law carries on displaying a significant degree of continuity
substantively.1
With regard to the actual use of the ECHR made by the ECJ, former AG Jacobs
maintains that ‘the European Court of Justice has treated […] the European
Convention on Human Rights as if it were binding upon the Community, and has
Many of the ideas developed in this section are the result of collaborative research with
Dr Ippolito conducted during my Visiting Professorship at the University of Cagliari, School of
Law, Italy (March–August 2012).
1
See Ref. [1] who demonstrate how institutional change does not necessarily trigger policy
change.

DOI: 10.1007/978-3-642-40267-8_4, The Author(s) 2014
78 4 The Role of the European Courts in Ensuring Adequate Standards of Asylum-Seekers’
followed scrupulously the case-law of the European Court of Human Rights, even
though the European Union itself is not a party to the Convention.’2 While a close
examination of the ECJ’s case law confirms that the Luxembourg Court has never
openly contradicted or departed from the Strasbourg Court’s rulings and that
similarly the ECtHR in cases concerning the EU legal order has shown almost a
deferential approach—most notoriously with the Bosphorus presumption-3 it is
also equally true that there has been an incoherent or piecemeal use of the ECHR
and the Strasbourg case-law by the ECJ, which in turn is reflected in the way the
ECtHR has been using the case-law of the ECJ.4 Furthermore, while Article 52(3)
of the EU Charter sheds some light on the content of EU fundamental rights vis-à-
vis Convention rights it remains silent as regards the relationship of the EU Charter
with the jurisprudence of the ECtHR, leaving the problem of the two-court system
unresolved.
To date, the Luxembourg and Strasbourg Courts have resolved their collisions
and conflicts in an informal setting of cross-fertilization and mutual acknowl-
edgment5 as confirmed by the Joint Communication of the Presidents Costa and
Skouris,6 which has been defined as a kind of ‘‘common supranational diplo-
macy.’’7 Beyond any definition, this type of arrangement is meant to maintain the
autonomy and primacy of the ECJ within the EU system. In Kamberaj,8 the ECJ
referred to the distinctiveness of the two European human rights regimes by stating
that Article 6(3) TEU9 does not lead to a progressive incorporation of the ECHR
into EU law or to the extension of the principles of primacy and direct effect to the
ECHR by virtue of this provision. Once again, the Luxembourg Court seems
driven by a concern to preserve the autonomy of the EU legal order.10 It is here
posited that it is precisely this concern over the autonomy and distinctiveness of
the EU legal system coupled with elements of classical sovereignty, chiefly ter-
ritoriality, found in certain cases of the ECtHR concerning asylum (such as
2
See Ref. [2], p. 54.
3
This important concept is examined in the next section.
4
See Refs. [3–6]
5
See S. Iglesias Sánchez (2012), footnote 136 in Ref. Chap. 2; see also [7]
6
See Ref. [8].
7
See Ref. [9].
8
See Case C-571/10, Servet Kamberaj v Istituto per l’Edilizia sociale della Provincia autonoma
di Bolzano (IPES) and Others, Judgment of the Court (Grand Chamber) of 24 April 2012, nyr, at
paras 62–63.
9
Article 6(3) TEU provides that: ‘Fundamental rights, as guaranteed by the European
Convention for the Protection of Human Rights and Fundamental Freedoms and as they result
from the constitutional traditions common to the Member States, shall constitute general
principles of the Union’s law.’
10
The autonomy of the Union’s legal system has been most notoriously emphasized in the Kadi
ruling, see Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat
International Foundation v Council of the European Union and Commission of the European
Communities [2008] ECR I-6351.
4.1 The European Court of Human Rights and the European Court of Justice 79
detention) that is particularly problematic from the viewpoint of asylum-seekers’

human rights protection. With this in mind the investigation, therefore, also
intends to consider the extent to which the latter may hinder access to effective
judicial remedies for asylum-seekers.
4.2 The European Court of Human Rights and Asylum
The preceding chapter showed that, while some significant steps forward have
been made, problems remain for an effective protection of asylum-seekers’ fun-
damental rights in Europe. In particular, the reform of key legislative instruments
of CEAS has not adequately addressed the limitations of EU asylum legislation of
CEAS’ first phase. As Costello observes ‘CEAS enshrines more mutual recogni-
tion of negative than positive decisions. The recognition of an asylum-seeker as a
refugee in one Member State does not create EU obligations for the others. […]
Member States use mutual recognition as a selective tool, to limit responsibility,
rather than to share it.’11 As a consequence, the ECtHR has not refrained itself
from adopting a more interventionist role in acting as a guarantor of human rights
within the State Parties to its conventional regime as confirmed by the MSS
judgment, examined further below.
The ECHR does not provide for a clear set of asylum-seekers’ rights. However,
the ECtHR has developed the bulk of its asylum jurisprudence on the basis of
Article 3 ECHR,12 particularly in relation to deportation and expulsion cases. In
Salah Sheekh the Strasbourg Court emphasized the centrality and absolute nature
of Article 3 ECHR stating that it enshrines one of the fundamental values of
democratic societies and prohibits in absolute terms torture or inhuman or
degrading treatment or punishment, irrespective of the victim’s conduct, however
undesirable or dangerous. It then held that in exercising their right to expel
individuals, Contracting States must take into due consideration Article 3 ECHR
11
See Ref. [10], at 335.
12
Asylum cases also concern other Convention rights. Specifically, Article 2 ECHR (right to
life), Article 4 ECHR (prohibition of slavery, servitude, and compulsory labour), Article 5 ECHR
(right to liberty and security of the person), Article 6 ECHR (right to a fair trial), Article 7 ECHR
(prohibition on retroactive criminal punishment), Article 8 ECHR (right to respect for family and
private life), Article 9 ECHR (right to freedom of thought, conscience, and religion), Article 10
ECHR (freedom of expression), Article 11 ECHR (freedom of assembly and association), Article
13 ECHR (right to an effective remedy), Article 14 ECHR (prohibition of discrimination in the
enjoyment of Convention rights), Article 4 of Protocol No. 4 (collective expulsion of aliens),
Article 1 of Protocol No. 7 (procedural safeguards relating to expulsion of aliens), Article 3 of
Protocol No. 7 (exclusion of own nationals), Article 4 of Protocol No. 7 (prohibition on double
jeopardy), Article 1 of Protocol No. 12 (general prohibition on discrimination); see further Refs.
[11, 12]; Council of Europe and European Union Agency for Fundamental Rights (2013),
Handbook on European Law relating to asylum, borders and immigration (Luxembourg:
Publications Office of the European Union); on Article 13 ECHR and asylum, see Ref. [13].
and thus the expulsion of an alien may give rise to an issue under this provision
and engage the responsibility of the expelling State under the Convention, where
substantial grounds have been shown for believing that the person in question, if
expelled, would face a real risk of being subjected to treatment contrary to Article
3 ECHR in the receiving country. In such circumstances, Article 3 ECHR implies
an obligation not to expel the individual to that country, namely the principle of
non-refoulement.13
Moving to the compliance of EU law with the European Convention, the initial
position was that a direct control over EU primary law was inadmissible ratione
personae as the then European Community (EC) was not a party to the ECHR.14
Such direct control has been subsequently declared admissible in relation to those
primary EC treaties over which the ECJ had no jurisdiction.15 In cases where the
Strasbourg Court was called to assess Member States’ responsibility ratione
materiae it developed the notion of presumption of ‘‘equivalent protection’’,
namely, that under EU law fundamental rights are protected in a way which could
be considered ‘‘equivalent’’ to that provided for by the Convention.16 This concept
was fully developed in the well-known case of Bosphorus17 where the concept of
‘‘equivalency’’ (of protection under EU law) was associated with that of ‘‘com-
parable’’ (rather than identical level) of protection of human rights. Linked to the
latter, it also went on to develop the other equally important notion of ‘‘pre-
sumption of conventionality,’’ namely, once it is demonstrated that an equivalent
protection is provided within an international organization, the presumption will
13
See e.g. Salah Sheekh v. the Netherlands, Application No. 1948/04, judgment of 11 January
2007 at para 135; Cruz Varas and others v. Sweden, Application No. 15576/89, judgment of 20
March 1991; Vilvarajah and others v. the United Kingdom, Application nos. 13163/87, 13164/87
and 13165/87, judgment of 30 October 1991; Chahal v. the United Kingdom, Application No.
22414/93, judgment of 15 November 1996 and Amuur v. France, Application No. 19776/92,
judgment of 25 June 1996; Saadi v. Italy, Application No. 37201/06, judgment of 28 February
2008.
14
As held by the former European Commission of Human Rights in CFDT v European
Community, Application 8030/77, decision of 10 July 1978. EU accession to the ECHR is beyond
the scope of this investigation. It has been debated and examined for over 30 years and is well-
documented, see e.g. Article 6(2) TEU, Protocol (No. 8) relating to Article 6(2) of the Treaty on
European Union on the Accession of the Union to the European Convention on the Protection of
Human Rights and Fundamental Freedoms, [2007] OJ C306/155; Protocol 14 to the European
Convention of Human Rights and Fundamental Freedoms, amending the Control System of the
Convention, of 13 May 2004, ETS 194, specifically Article 59(2) ECHR in order to allow a non-
state entity such as the EU to accede to the ECHR; [38]; [14–18]. For further information, visit
the Council of Europe dedicated webpage on EU accession, http://hub.coe.int/what-we-do/
human-rights/eu-accession-to-the-convention.
15
See e.g. Matthews v United Kingdom, Application No. 24833/94, Judgment of 18 February
1999, at paras 32–33.
16
See e.g. M & Co. v. Federal Republic of Germany, Application No. 13258/87, Decision of
9 February 1990.
17
See Bosphorus v. Ireland, (Application N 45036/98), Judgment of 30 June 2005, at paras
155–157.
4.2 The European Court of Human Rights and Asylum 81
be that a country has not departed from the requirements of the ECHR when it
does no more than implement legal obligations flowing from its membership of the
organization. It follows that if a Member State has no discretion in implementing
the legal obligations deriving from its membership of the organization it will not
be found responsible for the acts and omissions of the international organization to
which it has conferred powers. Such presumption can be rebutted on the basis that
protection in a particular case may be regarded as ‘‘manifestly deficient.’’ As to EU
asylum law, the Strasbourg Court has been called to decide on a number of cases
concerning the Dublin system. Its initial position has been that in the context of
such system there is a presumption that each Member State will comply with the
Asylum Procedures and the Reception Conditions Directives in order to guarantee
for minimum standards in asylum procedures and reception conditions for asylum-
seekers.18
However, this presumption was considered rebutted for the first time in the
landmark MSS ruling concerning an Afghan asylum-seeker who was returned by
Belgium to Greece under the Dublin II Regulation.19 The Strasbourg Court held
that there should be a proper ad hoc assessment every time there is a serious doubt
for the sending State that the Asylum Procedures and Reception Directives are not
being implemented effectively in the destination State to the extent that there are
‘‘major structural deficiencies’’ in the asylum procedure and reception conditions
for asylum applicants, which result in inhuman or degrading treatment.20 The
Strasbourg Court gave considerable weight to a series of reports published since
2006 by the Council of Europe, the EU, the UNHCR and NGOs.21 Moreover, the
ECtHR not long before the delivery of its judgment in MSS, had found degrading
detention conditions in three cases against Greece.22 According to Maiani and
Hruschka,23 the Court itself in examining the situation in Greece drew a distinction
between the ‘‘Sollen,’’ that is, what is provided by national law and the ‘‘Sein’’,
that is, the actual situation on the ground.
The presumption upon which the CEAS was based was no longer considered
per se a sufficient basis for intra-EU transfers of asylum-seekers and the ECtHR
18
See K.R.S. v. United Kingdom, Application no. 32733/08, 2 December 2008, where the
ECtHR held that the system so created ‘protects fundamental rights, as regards both the
substantive guarantees offered and the mechanisms controlling their observance.’
19
See MSS v Belgium and Greece, Application No. 30696/09, Judgment 21 January 2011. Space
precludes an exhaustive review of this landmark ruling, for case comment and critical analysis,
see Ref. [19]; Maiani and Hruschka (2011), see footnote 8 in Chap. 3 [20, 21].
20
See MSS, at para 300.
21
See MSS, para 160.
22
See SD v Greece, Application No. 53541/07, Judgment of 11 June 2009; Tabesh v Greece,
Application No. 8256/07, Judgment of 26 November 2009; AA v Greece, Application No. 12186/
08, Judgment of 22 July 2010.
23
See Maiani and Hruschka (2011), see footnote 8 in Chap. 3, at 15, who write: ‘la Cour fait
méticuleusement la différence entre le Sollen-ce qui est prévu par la législation nationale-et le
Sein-la situation sur le terrain.’
held that the practical implementation of protection standards by the Member State
concerned must be considered. The protection of human rights in the EU—and
chiefly the protection against indirect refoulement-24 was ensured by the Court on
the basis of a derogation clause as per Article 3(2) of the Dublin II Regulation.25
Hence, it may be argued that following MSS. The clause has been re-conceptu-
alized from being a mere residual guarantee of Member States’ sovereignty to a
necessary guarantee for ensuring compliance with EU and International human
rights law.26 In addition, the Strasbourg Court stressed the need for a ‘compre-
hensive reconsideration of the existing European legal regime.’27 Significantly, EU
asylum standards set out in the EU Procedures and Reception Directives have been
used by the ECtHR in order to identify the lack of adequate protection beyond the
traditional Conventional rights and, specifically, to extend the notion of inhuman
and degrading treatment to ‘‘living conditions’’ of asylum-seekers, such as desti-
tution and poverty,28 the ‘particularly serious’ deprivation of material reception
conditions (including accommodation, food and clothing, in kind or in the form of
monetary allowances) sufficient to protect the asylum-seekers. In MSS, failure by
Greece to comply with the Reception Directive influenced the Court’s reasoning
and it was used as an aggravating factor.29
However, when the ECtHR was called to consider the deprivation of benefits to
which the applicant was entitled to under the Qualification Directive, the Court
stated that it was not its task to apply directly the level of protection offered in
other international instruments.30 In Ahmed v the United Kingdom the authorities
had refused the applicant’s claim for asylum and his appeal rights were exhausted.
However, further to his complaint to the Court the impending removal to Somalia
was lifted. Subsequently, he sought compensation, inter alia, on the basis that he
24
The non-refoulement obligation under Article 3 ECHR includes also the so-called ‘‘indirect’’
refoulement which entails return to a country from where there is a risk of onward return to ill-
treatment, see T.I. v. United Kingdom, Appl. No. 43844/98, 7 March 2000, p. 15; see also Salah
Sheekh v. The Netherlands, 11 Jan. 2007, para 141; in K.R.S. v. UK, Application No. 32733/08,
admissibility decision, 2 Dec. 2008, p. 16; and in Abdolkhani and Karimnia v. Turkey, Appl. No.
30471/08, 22 Sept. 2009, at paras 88–89.
25
Now Article 17(1) of the Dublin III Regulation.
26
This is an observation made by Ippolito [39].
27
The Court stressed how such a needed on-going reform process of the CEAS’ instruments was
aimed in particular, ‘at substantially strengthening the protection of the fundamental rights of
asylum-seekers implementing a temporary suspension of transfers under the Dublin Regulation to
avoid asylum-seekers being sent back to Member States unable to offer them a sufficient level of
protection of their fundamental rights’ (at para 350).
28
See para 250; see also Budina v. Russia, Application No. 45603/05.
29
See Ref. [22], at 768.
30
See Ahmed v. the United Kingdom Application No. 31668/05, decision (inadmissible); see
also N.A. v. the United Kingdom, Application No. 25904/07 judgment of 17 July 2008, where the
ECtHR already held that its supervisory role under Article 19 was confined to examining alleged
breaches of provisions of the ECHR (e.g. in that case, Article 3) and therefore any submissions on
EU asylum law (concerning the Qualification Directive) fell outside its jurisdiction.
had been deprived of the benefits of access to employment, welfare payments and
accommodation to which he would have been entitled if his claim under the
Qualification Directive had been recognized. The Court stated that it was not
necessary to provide redress for any pecuniary or non-pecuniary damage incurred
by the applicant while he was under threat of removal to Somalia. Specifically, it
was not for the Court to apply directly the level of protection offered in other
international instruments and consequently held that the applicant’s submissions
based on the Directive were outside the scope of its examination of the present
application.
In addition and linked to this, in Sufi and Elmi the ECtHR made it clear that it
was inappropriate for the Court to decide on the scope of EU law.31 It did state
though that Article 3 ECHR offered ‘‘comparable protection’’ to that afforded
under the then Article 15 (c) of the Qualification Directive as interpreted by the
ECJ in Elgafaji.32 In particular, according to the Strasbourg judges, ‘the threshold
set by both provisions may, in exceptional circumstances, be attained in conse-
quence of a situation of general violence of such intensity that any person being
returned to the region in question would be at risk simply on account of their
presence there.’ As noted by Ippolito ‘the identification by the ECtHR in Sufi and
Elmi of some specific (non-exhaustive) criteria for assessing the level of severity
of a situation of general violence which is necessary to reach the threshold of a
‘‘real risk’’33 may provide guidance for the assessment of applications for sub-
sidiary protection as well as impact on the future application of the Elgafaji’s
principle by domestic courts.’34 In Hirsi35 the ECtHR referred to the EU Charter in
declaring Italy’s responsibility for failure to fulfill its international refugee law
obligations and highlighted that the non-refoulement principle is also enshrined in
Article 19 of the EU Charter.36 The judgment was the first one on interception-at-
sea, which established some important new legal principles on collective expul-
sions under Article 4 of Protocol 4.37 Indeed, the ECtHR for the first time applied
31
See Sufi and Elmi v United Kingdom, Applications nos. 8319/07 and 11449/07, paras
225–226.
32
See C-465/07 Elgafaji and Elgafaji v Staatssecretaris van Justitie ECR [2009] I-921.
33
See Sufi and Elmi v United Kingdom, para 241.
34
See Ippolito, in Ippolito and Velluti (2014), see footnote 26.
35
See Hirsi Jamaa and Others v Italy, Application No. 27765/09, 23 February 2012. For critical
analysis and case comment, see Ref. [23].
36
The Court also considered the information provided by Mr Jacques Barrot, Vice-President of
European Commission in a letter dated 15 May 2009 sent to the President of the European
Parliament Committee on Civil Liberties, Justice and Home Affairs in response to a request for a
legal opinion on the ‘return to Libya by sea of various groups of migrants by the Italian
authorities.’ In the letter he stressed the importance of compliance with the principle of non-
refoulement in the context of operations carried out on the high seas by Member States of the
European Union; see Hirsi, at paras 135 with 34.
37
Unanimously, the Grand Chamber found a violation of Article 3 ECHR prohibiting inhuman
and degrading treatment on a double count (risk of ill-treatment in Libya and risk of repatriation
from Libya to countries where there is a risk of ill-treatment), a violation of Article 4 of Protocol
this provision extraterritorially. In Hirsi the Strasbourg Court followed its

approach developed earlier in MSS in relation to the burden of proof placed upon
the applicant. In particular, by departing from its position in Vilvarajah,38 it stated
that there is no need to provide evidence of an individualized threat of torture or
other proscribed ill-treatment for Article 3 ECHR to be engaged. What is pivotal is
the country’s information contained in reports from independent sources,39 pro-
viding reliable accounts of the circumstances prevailing in the receiving state
make it ‘‘sufficiently real and probable’’ that the general situation may entail risks
for the individual as per Article 3 ECHR, the removal must be suspended.40 In
addition the state concerned must proactively implement its Article 3 obligations
and undertake the relevant investigation proprio motu. Furthermore, a presumption
of safety based solely on enacted domestic legislation and ratification of interna-
tional human rights instruments by the third country in question does not constitute
a sufficient guarantee of effective protection on the ground. It follows that the
contracting state in question is not released from its obligations under the ECHR.
What is required rather is an evaluation of whether those obligations are actually
being implemented in practice.
With regard to immigration detention, Article 5(1)(f) ECHR on the right to per-
sonal liberty and security only recognizes two legitimate aims for detaining for-
eigners in immigration procedures: the prevention of unlawful entries and
effectuating deportations. It follows that detention in cases where deportation is not
possible or where it is used as a deterrent is unlawful under Article 5(1)(f) ECHR. The
lawfulness of a decision to detain an alien will be assessed in relation to four aspects
of the detention, namely, the quality of the national laws authorizing the detention;
the conditions and place of detention; the underlying aim of the detention; and the
duration of the detention.41 In Chahal, when reviewing the initial decision by the state
to detain somebody who is to be deported, it stated that ‘Article 5(1)(f) does not
demand that the detention of a person against whom action is being taken with a view
to deportation be reasonably considered necessary, for example to prevent his
committing an offence or fleeing; in this respect Article 5(1)(f) provides a different
level of protection from Article 5(1)(c). Indeed, all that is required under this pro-
vision is that action is being taken with a view to deportation’. It may be inferred that
according to the Court under Article 5(1)(f) it is irrelevant whether the underlying
decision to expel can be justified under national or Convention law.42
No. 4 prohibiting collective expulsion and a violation of Article 13 ECHR guaranteeing a
domestic remedy for any arguable complaint of a violation of the Convention.
38
See Vilvarajah and Others v United Kingdom Application nos. 13163/87, 13164/87 and
13165/87, Judgment of 30 October 1991.
39
See Hirsi, at paras. 118 and 123.
40
Ibidem, at para 136.
41
For critical commentary and a detailed list of cases of the ECtHR, see Costello (2012), see
footnote 177 in Chap. 3, at 278–281.
42
See Chahal v. the United Kingdom, at para 112.
In Čonka, the Court re-stated that an unnecessary pre-deportation detention

does not constitute an unlawful detention.43 In so doing, it may be argued that it
endorsed interferences with the right to personal liberty that are unnecessary. This
approach is unhelpful towards unwanted migrants and may seriously undermine
the protection of their right to personal liberty. This is unless national laws put
down a necessity requirement, as the detention has to be in accordance with
national law as in Rusu44 where the detention was deemed arbitrary precisely for
failure to comply with the Austrian domestic legal standards and specifically the
necessity test.45
In Saadi,46 the Court adopted a similar approach. This is the leading case on
detention as a measure to prevent unauthorized entry. Notably, it was a case that
divided the judges and the partly dissenting opinion of Judges Rozakis, Tulkens,
Kovler, Hajiyev, Spielmann, and Hirvela deserves mention because it provides
important counter-arguments to the view taken by the majority of the Grand
Chamber. Saadi was a Kurdish national from Iraq, who applied for asylum in the
United Kingdom. After a few days, during which he was granted temporary leave
to remain, he was detained in a centre that was specifically designed to hold
asylum-seekers while their claims where decided in a fast track procedure to
ensure speedy and efficient decision-making. The Court held by majority that ‘the
principle that detention should not be arbitrary must apply to detention under the
first limb of Article 5(1)(f) in the same manner as it applies to detention under the
second limb. Since States enjoy the right to control equally an alien’s entry into
and residence in their country, it would be artificial to apply a different propor-
tionality test to cases of detention at the point of entry than that which applies to
deportation, extradition or expulsion of a person already in the country.’47 Con-
sequently, as in the case of pre-deportation, pre-admittance detention must not be a
necessary measure. In this context, Costello talks about detention becoming the
‘‘necessary adjunct’’ to state territoriality and, in particular, to sovereign entry
control which ‘imports the statist assumption into detention practices.’48 At the
same time, in Saadi the ECtHR laid out four requirements to prevent arbitrariness
in detention. In particular, detention must be49:
(1) carried out in good faith;
(2) closely connected to the purpose of preventing unauthorized entry of the
person;
43
See Čonka v. Belgium, at para 38.
44
See Cornelisse (2011), see footnote 95 in Chap. 2, at p. 214.
45
The notion of ‘‘arbitrariness’’ includes elements of inappropriateness, injustice, lack of
predictability and due process of law.
46
See Saadi v United Kingdom (Grand Chamber), 29 January 2008, Application No. 13229/03.
47
Ibidem, at para 73. Emphasis added.
48
49
See Saadi v United Kingdom, at para 74.
(3) in an appropriate place and under appropriate conditions bearing in mind that
detainee has not ‘‘committed criminal offences’’ but rather may have fled
fearing for his life; and
(4) the length of the detention should not exceed that reasonably required for the
purpose pursued.
Applying these criteria to Saadi’s detention, as the purpose of the deprivation of
liberty was to enable the authorities to determine in an expedite and efficient
manner the applicant’s claim to asylum, that requirement was considered to be
satisfied. The issues concerning the necessity and the proportionality of the
detention were only considered in relation to the duration of the detention.50 In
Saadi, the Court held that 7 days spent in detention by Saadi was not excessive, in
view of the purpose, namely speedy decision making in the asylum procedure, and
in consideration of the fact that at the time of the detention the United Kingdom
faced administrative difficulties.51
The dissenting judges criticized the majority’s approach on a number of issues.
In particular, they noted that the majority failed to distinguish between different
categories of migrants, subjecting them all to the ‘states’ unlimited sovereignty.’52
As regards the application of the criteria to the facts of the Saadi case, they took
the view that the majority’s approach to the duration of detention gave ample
discretion to states as to what is an acceptable duration of lawful detention.53
Significantly, the dissenting judges also exposed the limitations of the majority’s
approach from the perspective of international human rights. In particular, they
noted that the ‘ECHR ‘does not apply in a vacuum,’54 and mentioned the key
Human Rights Committee (HRC) jurisprudence and EU norms, noting that Article
18(1) of the Asylum Procedures Directive, precluding detention for the ‘‘sole
reason’’ of being a refugee, should be regarded as ‘‘the minimum guarantee.’’55
Criticisms to the Saadi decision were also made by the Council of Europe’s
Parliamentary Assembly in relation to the interpretation of ‘‘unauthorized entry’’
as de facto it enabled states to detain without limitation and more generally as it
was found to be in ‘‘blatant conflict’’ with the UNHCR guidelines on detention in
allowing detention throughout the entire asylum process.56
50
In Chahal the Court stated that deprivation of liberty will be justified only as long as
deportation proceedings are in progress and if these proceedings are not carried out with due
diligence, the detention will cease to be lawful under Article 5, see Chahal v. the United
Kingdom, at para 113.
51
See Saadi v United Kingdom, at para 79.
52
Ibidem, at para 32.
53
Ibidem, at para 34.
54
Ibidem, at para 34.
55
Ibidem, at paras 34–35.
56
See Ref. [24]; see also the Explanatory Memorandum to the same document by the
Rapporteur Mendonça, available at: http://assembly.coe.int/ASP/Doc/XrefViewHTML.asp?
FileID=12435&Language=EN.
In Lokpo and Touré v. Hungary,57 the ECtHR held that the detention of the
applicants for a 5 month period for the purposes of removal which never materi-
alized was disproportionate to the aim of removal pursued by the state. In particular,
the detention of asylum-seekers was deemed unlawful due to the authority’s failure
to make a reasoned decision to continue detention: ‘‘non-action’’ or ‘‘mere silence’’
in the continued detention was deemed insufficient to meet the requirement of
legality.58 Regrettably, the ECtHR did not engage with the compatibility of
domestic law with EU asylum law standards even though the legislation concerned
had been enacted to implement the Asylum Procedures Directive.
The detention cases examined above question the level of protection offered by
the ECtHR, particularly in view of its recurring statement that any deprivation of
liberty should be in accordance with the general principles expressed or implied in
the Convention.59 The reason for the Court’s inadequate protection for immigra-
tion detainees and for the granting to states of an almost unlimited margin of
appreciation in deciding on immigration detention is not only explained by an
uneasiness to encroach too far on an area that consists of ‘‘high politics’’ but also
because of the persistence of the unchallenged idea of territoriality.60
Undoubtedly, what transpires from the analysis of the Strasbourg Court’s
decisions is that EU asylum law is gradually becoming increasingly important in
the ECtHR’s asylum case-law61 and may well-exemplify what Callewaert defines
as the ‘‘unionisation’’ of the Convention,62 although it is difficult to define it in
exact terms. Moreover, what the foregoing analysis already seems to suggest is
that both European Courts are being influenced by each other’s decisions whilst at
the same time respecting the distinctiveness of the two European systems. One
exception to this evolution is the area of immigration detention where the EC-
tHR’a case-law is seriously lacking in considerations of proportionality and
necessity, although they are not completely absent from its judgments.
4.3 The European Court of Justice and Asylum
The ECJ has progressively asserted itself as ‘‘fundamental rights’ court.’’63 In so

doing, it has attributed ‘‘special significance’’ to the ECHR in the EU legal order
and it has relied on Convention rights as providing minimum standards for
57
See Lokpo and Touré v. Hungary, Application No. 10816/10, Judgment of 20 September
2011.
58
See Lokpo and Touré, paras 23–24.
59
See Cornelisse, see footnote 198 in Chap. 3, at p. 215.
60
Ibidem, at p. 215 and 220.
61
See Ippolito, in Ippolito and Velluti (2014), see footnote 26.
62
See Ref. [25].
63
See Ref. [26]
developing EU fundamental rights.64 With the legally binding status acquired by

the EU Charter following the entry into force of the ToL, a question that arises is
how this alters the approach of the ECJ towards the European Convention65 and
the jurisprudence of the ECtHR, which is particularly prominent in the context of
asylum where, as we have seen in the preceding section, the Strasbourg Court has
given important decisions. Article 52(3) of the EU Charter answers only partially
this question as it is not of much aid in cases where the content of the rights is or
may not be identical. To a certain extent, as this section will go on to show, the
ECJ clearly intends to interpret EU asylum legislation in a manner which is
consistent with the ECtHR asylum jurisprudence. On the other hand, the Lux-
embourg Court is also concerned with preserving the autonomy of its own juris-
diction and, more broadly, the EU legal order and the EU Charter is thus becoming
a vehicle for expanding the scope of protection of ‘‘EU’’ fundamental rights. In
this context, it will not refrain itself from adopting a more ‘‘progressive’’ approach
in interpreting relevant provisions to ensure this end.
Elgafaji,66 one of the first important ECJ cases concerning EU asylum law,
exemplifies an hermeneutic approach of the Court which favors an autonomous
interpretation of EU law, namely, one which does not rely on ECHR provisions to
outline and develop the actual content of EU asylum Directives’ provisions. In the
words of Ippolito, ‘the Court referred to the ECHR and its case law, although
mostly confirmatory of an EU fundamental right or principle determined through
an autonomous interpretation of EU law.’67 The case concerned the scope of
subsidiary protection under Article 15(c) of the Qualification Directive following a
referral of the Dutch Council of State. The latter asked the Court whether Article
15(c) offered supplementary protection compared to Article 3 ECHR and, if so,
what the criteria were for determining that subsidiary protection should be granted.
While both the Advocate General and the Court adopted an autonomous inter-
pretation the manner in which they conceived it differed. According to AG
Maduro, this ‘‘independent interpretation’’ of EU provisions was made necessary
by the fact that it was not left to the ECJ to establish which of the dynamic
64
In this sense, see Article 52(3) of the EU Charter which provides that in so far as it contains
fundamental rights that correspond to those provided by the ECHR, the meaning and scope of the
EU Charter’s rights shall be the same as those of the ECHR rights. Hence, the meaning and scope
of those fundamental rights that are already guaranteed by the ECHR must necessarily comprise
the ECtHR jurisprudence. However, Article 52(3) of the EU Charter does not prevent Union law
from providing more extensive protection and consequently the ECHR constitutes a ‘‘floor’’
rather than a ‘‘ceiling’’ for EU human rights law; see further Refs. [27, 28];
65
In a similar vein, see Weiss (2011), see footnote 64, who argues that the ToL has brought
challenges to the substance and methodology of human rights protection in the EU.
66
See C-465/07 Elgafaji and Elgafaji v Staatssecretaris van Justitie ECR [2009] I-921; see also
Ref. [29]
67
See Ippolito in Ippolito and Velluti (2014), see footnote 26 in this chapter.
4.3 The European Court of Justice and Asylum 89
interpretations of Article 3 ECHR proposed by the ECtHR should prevail.68 The

ECJ adopted a different approach and started by reformulating the reference made
by the national court. It then argued that Article 15(c) of the Directive was a
provision, the content of which is different from that of Article 3 ECHR.69 It
followed that its interpretation ‘must be carried out independently.’ More specifi-
cally, with regard to the definition of ‘‘individual threat’’ the ECJ held that it would
be violated where substantial grounds were shown for believing that a civilian,
returned to the relevant country, would, solely on account of his presence on the
territory of that country or region, face a real risk of being subjected to a threat of
serious harm.70 The Court further held that in order to demonstrate such a risk the
applicant is not required to adduce evidence that he would be specifically targeted by
reason of factors particular to his personal circumstances.71 Be that as it may, the
ECJ considered that such a situation would be ‘‘exceptional’’ in the context of such a
high level of indiscriminate violence, concerning civilians coming from territories of
armed conflict from which refuge is sought.72 The more the applicant could show
that he was specifically affected by factors particular to his personal circumstances,
the lower the level of indiscriminate violence required for him to be eligible for
subsidiary protection.73 Significantly, the ECJ only made a reference to the ECtHR
in an obiter dictum and, specifically, the case of NA v United Kingdom,74 in order to
confirm that the right to subsidiary protection autonomously interpreted was in line
with ECHR rights and the ECtHR jurisprudence.75
Samba Diouf,76 is another case in which the ECJ used an autonomous inter-
pretation of EU law and, in so doing, it relied solely on the EU Charter. The case
68
See Elgafaji, Opinion AG Maduro, at para 20.
69
The Court stated that: ‘it is […] Article 15(b) which corresponds, in essence, to Article 3 of
the ECHR,’ while Article 15(c) covers ‘‘more general risks of harm’’ than the ‘‘particular ones’’
Article 15(a) requires the applicant to be ‘‘specifically exposed’, see Elgafaji, at para 28.
70
See Elgafaji, at para 43.
71
Ibidem, at para 35.
72
Ibidem, at para 39.
73
Idem.
74
See NA v. the United Kingdom, Application No. 25904/07, at para 115. In this case the ECtHR
expressly considered its previous decision in Vilvarajah (Application Nos. 13163/87, 13164/87,
13165/87, 13447/87, 13448/87) and stated that Article 3 ECHR should not be interpreted so as to
require an applicant to show the existence of special distinguishing features if he could otherwise
show that the general situation of violence in the country of destination was of a sufficient level of
intensity to create a real risk that any removal to that country would violate Article 3 ECHR. In
any event, the Court would adopt such an approach only in the most extreme cases of general
violence where there was a real risk of ill-treatment simply by virtue of an individual being
exposed to such violence on return; see also F.H. v. Sweden (Application no. 32621/06, 20
January 2009, at para 93 and Mawaka v. The Netherlands, Application no. 29031/04, 1 June
2010.
75
See Elgafaji, at para 44.
76
See Case C-69/10 Brahim Samba Diouf v Ministre du Travail, de l’Emploi et de
l’Immigration, Judgment of 28 July 2011, Unreported.
concerned an application for international protection (specifically asylum) sub-

mitted by a Mauritanian citizen, which was rejected in the course of an accelerated
procedure on the ground that he had produced a forged passport and could not
substantiate the risk for being killed or forced into slavery. In addition, his fears of
reprisal by his employer were found not to amount to persecution under the
Geneva Convention as there was no political, ethnic or religious background to the
case. In this case the ECJ was asked whether the Asylum Procedures Directive or
the general principle of effective remedy under EU law as entrenched in Articles 6
and 13 ECHR, required an appeal against an administrative authority’s decision on
granting international protection made in the context of accelerated procedures.
AG Cruz Villalon found that Article 47 of the EU Charter provided more extensive
protection than the ECHR.77 In the Court’s view, the conformity of the Asylum
Procedures Directive was to be evaluated with regard to Article 47 of the EU
Charter and ‘therefore, indirectly, with the minimum content of the right to an
effective remedy as represented by the requirements of the European Convention
on Human Rights.’78 It was held that the lack of appeal proceedings against
accelerated administrative proceedings is not precluded under EU law on the
condition that the reasons which led to the decision to apply this procedure can be
subject to judicial review. According to Ippolito what is puzzling is that despite
similarities with the legal reasoning of the ECtHR’s cases, most notably Jabary,79
the Luxembourg Court preferred not to consider the case-law of the Strasbourg
Court.80
An example of ‘‘progressive’’ interpretation is the Salahadin Abdulla and Others
case,81 which is also one of the first asylum cases where reference to the EU Charter
as a key human rights instrument was made. The case concerned the revocation by
the German authorities of the refugee status of Iraqi nationals as a result of the
change in circumstances in Iraq. In particular, the ECJ held that the Qualification
Directive provisions ‘must be interpreted in a manner which respects the funda-
mental rights and the principles recognized in particular by the Charter.’82 Such an
77
According to AG Cruz Villalon ‘the right to effective judicial protection has, through being
recognized as part of European Union law by virtue of Article 47, acquired a separate identity and
substance under that Article which are not the mere sum of the provisions of Articles 6 and 13 of
the ECHR. In other words, once the right to effective judicial protection is recognized and
guaranteed by the European Union, that fundamental right goes on to acquire a content of its own.
[…] European Union law as a system of law has given rise to the development of its own set of
defining principles.’ (at para 39).
78
See Samba Diouf at para 34. Emphasis added.
79
See Jabari v. Turkey, Application No 40035/98.
80
See Ippolito in Ippolito and Velluti (2014), see footnote 26.
81
See Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08, Salahadin Abdulla & Others,
ECR [2009] I-1493; see Ref. [30].
82
See Abdulla, at para 54.
approach has been reaffirmed in Bolbol83 and in Joined Cases Germany v. B. and
Germany v. D. and others.84 In the former case, the ECJ held that by applying the
Qualification Directive in accordance with the EU Charter only those persons who
have actually availed themselves of the United Nations Relief and Works Agency
for Palestine Refugees in the Near East (UNRWA)’s assistance come within the
exclusion clause in Article 12(1)(a). In so doing, it adopted an interpretation of
Article 12(1)(a) of the Qualification Directive which reproduced Article 1D of the
1951 Geneva Convention. It excluded, therefore, from the scope of the Qualification
Directive persons receiving protection or assistance from bodies or agencies of the
United Nations. On the basis of this more generous interpretation, therefore, Ms
Bolbol who was a stateless person of Palestinian origin from the Gaza Strip who
sought asylum in Hungary and who did not avail herself of protection or assistance
from UNRWA prior to her application for refugee status, was able to have her case
examined on an individual basis under Article 2(c) of the Qualification Directive.
The ECJ agreed with the line of thinking of AG Sharpston who disagreed with the
interpretation of Article 1D put forward by the Office of the UNHCR.85
In B and D, the ECJ again interpreted the Qualification Directive in the light of
the EU Charter and held that a former member of a terrorist group is not auto-
matically excluded from the status of refugee. In particular, it held that the
decision whether to grant refugee status is conditional on an individual assessment
of the specific facts making it possible to determine whether there are serious
reasons for considering that in the context of his activities within that organization,
the person concerned can be held personally responsible for acts of terrorism. Such
an individual assessment of responsibility has to be made in the light of both
objective and subjective criteria.86 To that end, according to the Court the fol-
lowing considerations should be taken into account: the effective role of the
asylum-seeker in the perpetration of the acts, his/her position within the organi-
zation, the extent of the knowledge he/she had or should have had about the
activity of the group, any pressure to which he/she was exposed, or other factors
likely to have influenced his/her conduct.87 Further, Member States may not
exclude him/her from the refugee status except if he/she has committed a crime of
exceptional seriousness.88
NS and ME was the ECJ’s ‘‘response’’ to the MSS ruling by the ECtHR. It
concerned Afghan, Iranian and Algerian asylum-seekers who challenged their
return from the United Kingdom and Ireland to Greece under the Dublin
83
See Case C-31/09, Bolbol v Bevandorlasi es Allampolgarsagi Hivatal ECR [2010] I-5539; see
Ref. [31].
84
See Joined Cases C-57/09 and C-101/09, Germany v. B. and Germany v. D. and others,
Unreported 17 June 2010, and Opinion of AG Mengozzi, 1 June 2010, at para 78.
85
See Case C-31/09 Bolbol Opinion of AG Sharpston 4 March 2010, at para 38.
86
See Germany v B and Germany v D, at paras. 94 and 96.
87
Ibidem, at para 97.
88
Ibidem, at para 108.
Regulation.89 The judgment makes it clear that a Member State may potentially
infringe Article 4 of the EU Charter if it transfers an asylum-seeker to another
Member State in certain circumstances. The decision is also important in clarifying
the applicability of the EU Charter to the United Kingdom and Poland according to
Protocol 30. In particular, it was held that Article 1(1) of Protocol 30 merely
‘‘explains’’ Article 51 of the EU Charter and is not a provision which amounts to
an opt-out. However, as noted by Mellon neither the Grand Chamber nor the
Advocate General considered in much detail the more contentious issue of the
applicability of Title IV (on ‘Solidarity’) concerning social and economic rights,
where Article 1(2) of Protocol 30 is likely to have more effect.90
AG Trstenjak91 opined that if there is a serious risk that the fundamental rights
under the EU Charter of the asylum-seeker to be transferred may be breached in
the Member State having primary responsibility, the other Member States may not
transfer an asylum-seeker to that Member State. Rather, the other Member States
are, in principle, obliged to exercise the right to assume responsibility under
Article 3(2) of the Dublin Regulation and must themselves examine the asylum
application. As regards the question of whether the protection afforded by the
rights set out in Articles 1, 18 and 47 of the EU Charter was wider than that
afforded by Article 3 ECHR, the Advocate-General stated somewhat cautiously
that under Article 52(3) of the EU Charter it must be ensured that the protection
guaranteed by the Charter in the areas in which the provisions of the EU Charter
overlap with the provisions of the ECHR is no less than the protection granted by
the ECHR92 and that ‘particular significance and high importance’ had to be
attached to the ECtHR case-law in connection with the interpretation of the rel-
evant provisions of the EU Charter by the ECJ.93 On this ‘‘silence’’ Costello notes
that the question had lost salience since the MSS ruling where transfers to Greece
were held to be in breach of Article 3 ECHR. At the time of KRS94 the question
could have been of some relevance because in the absence of an Article 3 ECHR
engagement the focus of attention would have moved to Article 4 of the EU
Charter, namely, whether removal could amount to a breach of the EU Charter.95
Similarly, the Court did not enter into the merit of whether the right to asylum
under Article 18 of the EU Charter overlaps with Articles 1 and 47, as well as
Articles 4 and 19(2). In addition, the ECJ also stated that the judgments of the
ECtHR ‘essentially always constitute case-specific judicial decisions and not rules
89
See Joined cases C-411/10 and C-493/10, N. S. v Secretary of State for the Home Department
et M. E. and Others v Refugee Applications Commissioner and Minister for Justice, Equality and
Law Reform, Judgment of Unreported; for case comment and critical analysis, see Refs. [32–34].
90
See Mellon, see footnote 89, at 661.
91
See NS and ME, Opinion of AG Trstenjak, of 22 September 2011.
92
See NS and ME, Opinion of AG Trstenjak, at para 148.
93
94
See Application No. 32733/08.
95
See Costello (2012), see footnote 11, at 327.
of the ECHR themselves, and it would therefore be wrong to regard the case-law
of the European Court of Human Rights as a source of interpretation with full
validity in connection with the application of the Charter.’96 By the same token,
the ECJ also remained silent on the scope of the right to asylum in Article 18 of the
EU Charter.97 Instead, it merely upheld the need to exercise the sovereignty clause
and, in particular, it held the responsibility of the sending state under Article 3(2)
Dublin Regulation for the asylum’s application when there are ‘systemic defi-
ciencies in the asylum procedure and reception conditions for asylum applicants’
resulting in inhuman or degrading treatment, within the meaning of Article 4 of the
EU Charter.98 The extent to which breaches of other EU fundamental rights should
prevent transfer remains to be seen. In contrast to the Opinion of the Advocate
General, the ECJ decided to focus on Article 4 of the EU Charter probably in
consideration of the fact that, given the inclusion therein of important fundamental
social rights, including other breaches could have opened the floor to different non-
refoulement claims.99 The Court clarified that the EU asylum system cannot
operate on the basis of a ‘conclusive presumption’ that all EU Member States
‘observe the fundamental rights of the European Union.’100 Moreover, the ECJ
referred to ‘the extent of the infringement of fundamental rights described in MSS
v. Belgium and Greece101 and, in particular, the absence of any guarantee that the
asylum application would be seriously examined by the Greek authorities and the
exposure of the applicant to conditions of detention and living conditions that
amounted to degrading treatment,’102 to determine that the existence of ‘‘systemic
deficiencies’’ in the asylum procedure and reception conditions for asylum
applicants resulting in inhuman or degrading treatment form a basis for rebuttal of
the presumption of equivalent protection.
However, in defining the burden of proof test to rebut the presumption of safety
according to which a Member State ‘cannot be unaware’ of such systemic
96
97
On the content of the right to asylum in Article 18 of the EU Charter and the right to an
effective remedy in Article 47 of the EU Charter, see UNHCR (2011), UNHCR Oral Submissions
in Joined Cases of NS (C-411/10) and ME and Others (C-493/10) Hearing of the Court of Justice
of the EU Luxembourg, 28 June 2011 available at: http://www.refworld.org/pdfid/4e1b10bc2.pdf.
The Court did not use either the indicators for the determination of the breach’s seriousness
developed by the UNHCR in its oral submission or the points on the impact of the breach on the
individual.
98
See NS and ME, at paras 84, 86, 94 and 106. On the contrary, ‘‘serious’’ risks of infringements
of individual provisions of the Common European Asylum System Directives in the Member
State primarily responsible are not sufficient to create an obligation on the part of the transferring
state to assume responsibility for the asylum examination, provided these infringements do not
also violate the Charter rights of the asylum-seeker to be transferred. This mirror’s the Opinion of
the Adovate general (at para 127).
99
On this point, see Costello (2012), see footnote 11, at 332.
100
See NS and ME, at para 105.
101
102
See N.S. and M.E., at paras 86 and 94.
deficiencies, it did not refer to the part of the MSS judgment where the ECtHR, in
consideration of the inherent vulnerability of asylum-seekers as a group, developed
the concept of a ‘‘shared burden of proof.’’103 Similarly, it did not refer to MSS
when it argued that a country may gather information from the reports of inter-
national organizations, the UNHCR104 as well the European Commission, which
were the same mentioned by the ECtHR.105 Likwise, in relation to the standard of
proof the ECJ relied on its own autonomous interpretation of ‘‘serious risk’’ and
did not refer to the concept of ‘‘substantial grounds for a real risk’’ developed by
the ECtHR.106 According to the Meijers Committee, in relation to assessing
whether the national authorities of the sending State ‘‘knew or ought to have
known’’ about the risk of ill-treatment in the country of destination, Member States
should be obliged to report on the length of the procedure, the detention conditions
and reception capacity in relation to the inflow of asylum-seekers to EASO and the
Commission statistical data (the Asylum Management Reporting System), on a
quarterly basis.107 Hence, what transpires from the foregoing analysis of NS and
ME is that both the ECJ and the Advocate General are emphasizing the importance
of the EU Charter’s provisions and the autonomy of the EU legal order whilst at
the same time being mindfully respectful of the ECHR and the case-law of the
ECtHR.
The foregoing predilection for an autonomous interpretation of EU law and the
EU Charter provisions does not only concern those cases where the content of
the right in the EU legal order and in the ECHR differs. Even in cases where the
content of the right may be considered identical the ECJ seems to be reluctant to
rely on the ECtHR case law. Y and Z108 seems to confirm this proposition. The
referring court asked whether and, if so, to what extent an act restricting freedom
103
See MSS, at paras 352 and 359. This was in line with the position of UNCAT, see Agiza v.
Sweden (2005, at para 13.7); A.S. v. Sweden (2000, at para 8.6) and with the view of the UN Sub-
Commission for the Promotion of Human Rights, namely that once a general risk situation is
established, there is a ‘presumption’ that the person would face a real risk, see UN Sub-
Commission on the Promotion and Protection of Human Rights (2005), Resolution 2005/12 on
Transfer of Persons, 10 Aug. 2005, at para 4.
104
In MSS the Grand Chamber of the European Court of Human Rights (ECtHR) attached
‘‘critical importance’’ to UNHCR’s views, see MSS at para 349.
105
In MSS, the ECtHR mentioned the European Commission’s infringement procedures against
Greece, in 2006 and 2008, regarding the country’s failure to apply the Reception Conditions
Directive and to comply with its obligations under the Dublin Regulation by not adopting the
laws, regulations and administrative measures necessary to ensure the examination of
applications by asylum-seekers transferred back to Greece under the terms of the Regulation.
106
This concept was first developed by the ECtHR outside EU asylum cases (see e.g. Soering v.
United Kingdom, Application No. 14038/88) and has subsequently been applied to Dublin returns
(see e.g. T.I. v. United Kingdom, Application No. 43844/98, K.R.S. v. United Kingdom,
Application No. 32733/08 and MSS, Application No. 30696/09.
107
See Ref. [35].
108
See Joined Cases C-71/11 and C-99/11 Federal Republic of Germany v Y and Z Judgment of
the Court (Grand Chamber) of 5 September 2012, nyr.
of religion and, in particular, the universal right of freedom of worship, constitutes

an ‘‘act of persecution’’ within the meaning of Article 9(1)(a) of the Qualification
Directive. Y and Z, were two Pakistani nationals, members of the Ahmadiyya
minority community (a minority not recognized by the Muslim majority) who
claimed that they were forced to leave Pakistan because of their membership to
that community, and who applied for asylum in Germany. The German authorities
rejected Y and Z’s applications for asylum, finding that the restrictions on the
public practice of faith imposed on Ahmadis in Pakistan did not constitute per-
secution for the purposes of the right of asylum. In his Opinion AG Bot109 pro-
posed an interpretation which followed the ECtHR’s jurisprudence.110 In
particular, ‘a severe violation of freedom of religion, regardless of which com-
ponent of that freedom is targeted by the violation, is likely to amount to an ‘‘act of
persecution’’ where the asylum-seeker, by exercising that freedom or infringing
the restrictions placed on the exercise of that freedom in his country of origin, runs
a real risk of being executed or subjected to torture, or inhuman or degrading
treatment, of being reduced to slavery or servitude or of being prosecuted or
imprisoned arbitrarily.’111
The Court, unlike the Advocate General, was more laconic and stated that it
might be the case ‘where an applicant for asylum, as a result of exercising that
freedom in his country of origin, runs a genuine risk of, inter alia, being prose-
cuted or subject to inhuman or degrading treatment or punishment by one of the
actors referred to in Article 6 of the Directive.’112 In particular, no reference was
made to the ECtHR’ decision in Z and T v United Kingdom.113 This is quite
surprising if we consider that not only freedom of religion is guaranteed in the
same terms in both the EU Charter and in the ECHR but also that the question
submitted to the ECtHR was very similar to the one submitted to the Luxembourg
Court by the German referring court. In spite of the lack of reference to the
ECtHR’s judgment, the decision of the ECJ is a welcomed development.
According to the ECJ, it is not the public or private, or collective or individual
nature of the manifestation and practice of the religion which will determine
whether a violation of the right to freedom of religion should be regarded as
persecution, but the severity of the measures and sanctions adopted or liable to be
adopted against the person concerned.114 In that context, the Court held that a
violation of the right to freedom of religion may constitute persecution where,
because of the exercise of that liberty in his country of origin, there is a genuine
risk that the asylum applicant will, inter alia, be prosecuted or subject to inhumane
109
See Joined Cases C-71/11 and C-99/11, Federal Republic of Germany v Y and Z, Judgment of
the Court (Grand Chamber) of 5 September 2012, Unreported, Opinion of AG Bot, 23 April 2012.
110
See Z and T v United Kingdom, Application No. 27034/05, 28 February 2006.
111
Ibidem, at para 86.
112
See Y and Z, at para 67.
113
114
See Y and Z, at paras. 58–66.
or degrading punishment.115 In the light of this, the Court held that, where it is
established that, upon his return to his country of origin, the person concerned will
engage in a religious practice which will expose him to a real risk of persecution,
he should be granted refugee status.116
In K,117 concerning a woman who entered Poland irregularly, applied for
asylum and then without awaiting the decision moved to Austria irregularly to
rejoin one of her adult sons who was already a refugee in that country, the ECJ was
asked to clarify on the application of the humanitarian clause in Article 15 and
sovereignty clause in Article 3 of the Dublin Regulation. The ECJ again declined
to clarify whether Article 18 of the EU Charter amounted to a free-standing right
to asylum. That said, it affirmed that the objective of the Dublin Regulation must
be to ensure effective access of the asylum-seeker to refugee status
determination.118
With regard to the questions made by the referring court, the ECJ declined to
consider the issue of whether the sovereignty clause may be applied beyond the
risk of an infringement of Article 4 of the EU Charter and whether a more
extensive notion of ‘‘inhuman treatment’’ or ‘‘family’’ (differing from that of the
ECtHR) may be applied.119 Nevertheless, the overall outcome of the decision is a
positive one as ultimately it promotes the importance of family unification also for
refugees.120 The Court adopted a teleological reading of the humanitarian clause in
Article 15 of the Dublin Regulation and in so doing it transformed the discretion to
promote family unity contained in the ‘‘humanitarian clause’’ into an automatic
obligation.121 In this respect, it may be posited that it goes beyond NS and ME as
in that case the Court, in contrast to the Advocate General, refused to maintain that
a Member State had a duty to take responsibility for the asylum-seeker if a Dublin
transfer would expose them to serious risk of violating fundamental rights.
In Halaf,122 a Dublin transfer case concerning an Iraqi national who had
unsuccessfully applied for asylum in Bulgaria, the ECJ was asked, inter alia, what
the content of the right to asylum under Article 18 of the EU Charter is in
conjunction with Article 53 of the EU Charter and in conjunction with the defi-
nition in Article 2(c) and Recital 12 of the Dublin II Regulation. Hence, the ECJ
was asked (again) to clarify whether Article 18 of the EU Charter amounts to a
free-standing right to asylum and whether a breach of such a right in cases of a
115
Ibidem, at paras 68–71.
116
Ibidem, at para 79.
117
See Case C-245/11, K v Bundesasylamt, Judgment of the Court (Grand Chamber) of
6 November 2012, nyr.
118
Ibidem, at para 48.
119
Ibidem, at para 55.
120
Ibidem, at para 52.
121
Ibidem, at para 53.
122
See Case C-528/11, Zuheyr Frayeh Halaf v Darzhavna agentsia za bezhantsite pri
Ministerskia savet, nyr, Judgment of 30 May 2013.
transfer would not be avoided. Regrettably, the Court deviated from answering the
question by rephrasing the question of the referring court and arguing that the
latter was based on the incorrect assumption that a Member State may examine an
application for asylum on the basis of the sovereignty clause only if it is shown
that the Member State responsible under the Dublin Regulation would not respect
the right to asylum as per Article 18 of the EU Charter. The Court then, in a rather
perfunctory manner, simply stated that because the option under Article 3(2) of the
Dublin Regulation is not subject to any particular condition there is no need to
answer the question concerning the content of the right to asylum in Article 18 of
the EU Charter.123
In the Puid case,124 concerning an Iranian national who applied for asylum in
Germany, the key question is whether an asylum-seeker may be said to have a
personal enforceable right against a Member State deriving from Article 3(2) of
the Dublin Regulation. In particular, the question posed by the national referring
court is whether a duty of the Member States to exercise the sovereignty clause
under Article 3(2) Dublin Regulation can also be inferred from reasons not directly
associated with the asylum-seeker himself or other particularities of an individual
case, but which result from a legal or administrative situation in the Member State
assuming responsibility that pose a threat to the fundamental rights of asylum-
seekers under the EU Charter. As already seen above, in MSS the ECtHR, in
assessing the risk of ill-treatment in the Member State responsible according to the
criteria set out in the Dublin Regulation, took into consideration the general
country’s situation in order to establish the risk of ill-treatment, rather than the
individual circumstances of the asylum-seeker.
In his Opinion, AG Jääskinen maintains that asylum-seekers do not have an
enforceable claim to compel a Member State to examine their applications for
asylum in accordance with the Article 3(2) of the Dublin Regulation as the latter
has not been conceived to vest individuals with rights but rather in organizing
relationships between Member States.125 However, the Advocate General, fol-
lowing the decision in NS and ME126 opines that in ‘‘exceptional situations,’’
namely, those that fulfil both the substantive and the evidential threshold set out by
the Court in NS and ME, a national court that cannot be unaware that systemic
deficiencies in the asylum procedure and in the reception conditions of asylum-
seekers in the Member State responsible under the Dublin Regulation amount to
substantial grounds for believing that, asylum-seekers would face a real risk of
being subjected to inhuman or degrading treatment within the meaning of Article 4
of the EU Charter, is obliged to suspend the transfer of asylum-seekers to that
123
See Halaf, at paras 40–42.
124
See Case C-4/11, Federal Republic of Germany v Kaveh Puid pending, OJ C 95/3-4,
26 March 2011.
125
See Puid Opinion of AG Jääskinen, 18 April 2013 at paras 57–58.
126
Ibidem, at paras 3 and 39–45.
Member State.127 More specifically, the competent authorities have a positive

obligation to desist from transferring asylum applicants to the responsible Member
State proprio motu so as not to expose an asylum-seeker to inhuman and degrading
treatment, prohibited by Article 4 of the EU Charter. In this context, the Advocate
General also seems to be preoccupied with the effects that such a rationale, as
developed in NS and ME, may have on the principle of mutual trust. He thus goes
on to clarify that ‘the Court has aimed at establishing a high barrier against the
setting aside of the principle of mutual trust underlying Regulation No. 343/2003.
This means that the principle of mutual trust may not be placed under question
through systematic examination, in each procedure entailing an application for
asylum.’128 What transpires from the Opinion is the primacy of the principle of
non-refoulement and its absolute nature. However, this is done by emphasizing
that the circumstances such as the one in the present case are ‘‘exceptional situ-
ations’’ and also by heralding the importance of the principle of mutual trust in the
Dublin system. In the Opinion there is no reference to the ECHR and the ECtHR’s
case-law and the Advocate General, therefore, seems to be following a series of
cases of the ECJ which favour an autonomous interpretative approach.
With regard to detention, the key case is Kadzoev,129 a case concerning the
limitation of pre-deportation detention of asylum-seekers. This was the first judg-
ment on the Returns Directive. The case was about an applicant of Chechen origin,
Kadzoev, who applied for asylum in Bulgaria. The Bulgarian authorities rejected
his application and ordered his expulsion as an illegal immigrant. However, his
expulsion to Russia was not possible, as he had no identity documents issued by the
Russian authorities. Pending a solution allowing his return to Russia or to another
third country, Kadzoev was detained in a detention centre for more than 3 years.
Under the PPU procedure, the ECJ was asked to clarify the scope of Article 15 of
Returns Directive,130 with a particular emphasis on the obligation for Member
States not to exceed the maximum period of 18 months pursuant to paragraphs 5
and 6 of the same provision. The reasoning of the ECJ and the Advocate General
were similar, although the Opinion provided much more detailed analysis. AG
Mazák grounded his reasoning in the ‘reasonable prospect of removal’ under Article
15(4) of the Returns Directive on the basis that EU law also incorporated the Article
5(1)(f) ECHR standards. In so doing, the Advocate General cited Chalal and chiefly
127
Ibidem, at paras 61 and 63.
128
Ibidem, at para 62. Emphasis added.
129
See Case C-357/09 PPU, Said Shamilovich Kadzoev, [2009] ECR I-11189; there is also a
case pending before the ECtHR concerning the lawfulness of his detention under the ECHR, see
Kadzoev v Bulgaria, Application No. 56437/07, introduced on 20 December 2007.
130
See European Parliament and Council of the European Union (2008) Directive 2008/115/EC
of the European Parliament and of the Council of 16 December 2008 on common standards and
procedures in Member States for returning illegally staying third-country nationals, OJ L 348/98,
24.12.2008.
Mikolenko131 according to which detention was unlawful as there was no reasonable

prospect of removal due to insufficient cooperation from the receiving country.
Significantly, the Advocate General referred to the Council of Europe documents,
particularly the CAHAR Guideline Number Seven on Forced Return.132 At the
same time, Kadzoev also suggests that the standards of protection afforded by the
Returns Directive are higher than those provided by the ECHR particularly in
relation to the requirement that detention is necessary to ensure removal.133
Similarly, in El Dridi134 the Court observed that the Returns Directive took into
account both the case-law of the ECtHR135 and CAHAR Guideline No. 8., both on
the limitation of duration of pre-deportation detention.136
These two detention cases illustrate the interactions between the two European
Courts. However, important differences remain in terms of the level of protection
afforded. As seen above,137 the ECtHR rejects the requirements of necessity and
proportionality in its case law, using ‘‘reasonable time’’ as the benchmark for
assessing arbitrariness. As Costello points out, ‘it would be regrettable if the
distinctive EU version of proportionality were to be sapped of vigor by converging
on the weak ECHR non-arbitrariness standard.’138 For Cornelisse the likelihood of
this occurring is improbable in consideration of the fact that Member States, when
implementing EU law, are bound by the EU Charter, which permits limitations on
the right to personal liberty only if these are proportionate and necessary, and
genuinely meet objectives of general interest that are recognized by the Union.139
4.4 Reflecting on the Role of the European Courts

in the Protection of Asylum-Seekers’ Human Rights
The findings of the previous section show that the adoption of the EU Charter,
particularly since it acquired the same legal value as the EU Treaties,140 has had
and is having a significant impact on the development of CEAS. In particular,
131
See Chahal v. United Kingdom, Application No.22414/93, 23; Mikolenko v. Estonia,
Application No. 10664/05.
132
See Council of Europe (2005), ‘Ad hoc Committee of Experts on the Legal Aspects of
Territorial Asylum, Refugees and Stateless Persons (CAHAR)—Twenty Guidelines on forced
return’ available at: https://wcd.coe.int/ViewDoc.jsp?id=858071&Site=COE.
133
See Kadzoev, at para 64.
134
See Case C-61/11 PPU Hassen El Dridi alias Soufi Karim, Judgment of the Court (First
Chamber) of 28 April 2011, nyr.
135
In particular it cited Saadi, Application No. 13229/03.
136
See Council of Europe (2005), footnote see footnote 131.
137
See above, Sect. 4.2.
138
139
See Cornelisse, see footnote 95 in Chap. 2, at p. 221.
140
See Article 6(1) TEU.
through a series of key cases of the ECJ the EU Charter is being brought to life and
is rapidly becoming a vital hermeneutic tool for the Luxembourg Court in order to
substantiate and shape the actual content and scope of basic human rights for
asylum-seekers, contained in a rather inchoate manner in key EU asylum legis-
lative instruments. The ECJ’s judicial activism combined with the equally
important ‘‘monitoring’’ function of the ECtHR is filling in the lacunae of EU
asylum legislation, which in spite of the recast process remain.
In turn, in the context of a changing juridical landscape, these judicial devel-
opments beg the question of what type of relationship there is between the ECJ and
the ECtHR. Is it one wrought with conflict, destined to deteriorate and peril? With
EU accession to the European Convention looming large on the horizon, this view
clearly does not have any solid foundation. Nor is it one of passionate love though,
as seen in the foregoing jurisprudential analysis. The answer is most plausibly
somewhere in-between.
Since the EU Charter entered the scene, the reference made to the ECHR and
the ECtHR’ case law appears to be mostly confirmatory of a fundamental right or
principle, determined through an autonomous interpretation of EU law. In par-
ticular, this has been the case when according to the ECJ the content of the right in
the EU legal order did not ‘‘match’’ in its entirety that of the corresponding right
contained in the ECHR. However, at the same time, both the Court and the
Advocate General have adopted a respectful and mindful approach to the ECHR
and the Strasbourg Court’s case-law.
Still, is the emphasis placed on interpretative autonomy and/or distinctiveness
of the EU legal order by the ECJ problematic from the perspective of asylum-
seekers’ effective human rights’ protection? Or, to put it differently, does the focus
on autonomy (and a concern for its preservation) on the part of the ECJ and, linked
to this, the emergence of what may be coined as ‘‘parallel human rights legal
regimes,’’141 lead to an incoherent and patchy framework of human rights’ pro-
tection? Incoherence has potentially negative effects on the protection of asylum-
seekers’ human rights142 and it is thus a legitimate concern. However, there are
strong reasons—both legal and of a more pragmatic nature-suggesting otherwise.
First, Article 52(3) of the EU Charter regulates the relationship between the two
European human rights systems by tying to the EU Charter the meaning and scope
of those rights which correspond to the rights of the European Convention. While
no reference to the case law of the ECtHR is to be found in the provisions of the
EU Charter, the Explanations to Article 52(3) clearly state that ‘paragraph 3 is
intended to ensure the necessary consistency between the Charter and the ECHR’
141
Garlicki talks about ‘‘multidimensionality of constitutional protection of human rights’’ to
refer to the growing phenomenon of overlapping legal regimes for the international protection of
asylum-seekers and refugees, see Ref.[36], at 509; see also Costello who in relation to detention
illustrates how different human rights bodies ‘speak with different voices […], a phenomenon that
is […] explained by their different institutional contexts and decisional autonomy’, see Costello
(2012), see footnote 177 in Chap. 3, at 260.
142
On the consequences of incoherence, see further Ref. [37].
4.4 Reflecting on the Role of the European Courts 101
and ‘the scope of the guaranteed rights are determined also by the case-law of the
ECJ and the ECtHR.143 Both the EU Charter and the European Convention contain
a general non-regression clause as a further safeguard.144 Moreover, Article 52(7)
clearly states that ‘the Explanations shall be given due regard by the courts of the
Union and of the Member States.’ In addition, we have already seen that the
Luxembourg and Strasbourg Courts have often opted for some kind of diplomacy,
relying on an informal platform to resolve any collision or conflict and generally
mutually acknowledging each other’s jurisdiction.145
Hence, it may be argued that in relation to asylum-seekers’ human rights the
role of the European Courts remains key to ensuring their effective protection,
particularly in the light of a lack of real progress following the reform of EU
asylum law. What seems ‘to emerge is a shared view and understanding that
human rights should be better protected through the development of a ‘‘European’’
ius commune and that a certain optimization of ‘‘judicial cooperation’’ may con-
tribute to this aim.’146 Arguably, more than ‘‘a parallel interpretation’’ of the EU
Charter and the ECHR might be taking place, albeit at an embryonic stage: a ‘kind
of bilateral interplay between the EU and Convention law, thereby producing a
twofold process of ‘‘conventionalization’’ of Union law and ‘‘unionization’’ of
Convention law, though with different timings and intensities.’147
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143
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144
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145
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and Scheeck (2009), see footnote 7.
146
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on Abdulla. Int J Refug Law 23(3):521–537
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10). Eur Human Right Law Rev 2:205–210
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Chapter 5
CEAS, Asylum-Seekers and EU Human
Rights Post-Lisbon: Closing the Gaps
in the European Protection Regime
The art is to translate the rhetoric of human rights protection into a working reality that is
commensurate with human dignity, compatible with international obligations and con-
sistent with the rule of law.1
Since Tampere, the EU has rapidly and distinctly asserted itself as a major
player in the international refugee regime. CEAS concerns many aspects of asy-
lum, which are now covered by a substantial body of EU asylum law. To date, the
relationship between EU asylum law and human rights law has nonetheless been
tense. Even after the reform of CEAS, EU asylum legislation remains focused
primarily on the prevention of abuses of the asylum system, the restriction of
secondary movements of asylum-seekers and the efficient determination of asylum
applications, rather than being premised on providing an adequate protection of
asylum-seekers’ human rights. These significant shortcomings of CEAS are also
associated with misconceptions of who an asylum-seeker is. Protection-seekers are
often regarded as potential economic migrants (and, linked to this, as a threat to the
sustainability of Member States’ welfare states as well as public order and safety)
rather than as persons who may be in need of international protection. In addition,
the ‘‘embeddedness’’ of classical understandings of national sovereignty, the
security paradigm and, more broadly, the idea of ‘‘Fortress Europe,’’ whereby the
dismantling of internal borders between Member States has led to a parallel
strengthening of the EU external borders, are all factors explaining why progress
in fully developing CEAS has been piecemeal to date. In this context, EU asylum
law risks becoming instrumental to a restrictive EU immigration policy.
The analysis carried out throughout this volume shows that the EU’s asylum
acquis contains significant protection gaps. It also exposes the level of complexity
involved in developing a fairer and more humane CEAS and, more generally, the
challenges that lay ahead.2 As Cornelisse acutely observes ‘the concepts of
1
See Ref. [1], at p. 17.
2
It is here acknowledged that a true CEAS requires comprehensive solutions covering also the
external dimension of EU asylum policy and migration management, and which also address the
root-causes of migration. This is examined elsewhere; see Velluti (2014) and see footnote 153 in
Chap. 3.

DOI: 10.1007/978-3-642-40267-8_5, Ó The Author(s) 2014
106 5 CEAS, Asylum-Seekers and EU Human Rights Post-Lisbon
constitutionalism and citizenship are not (yet) able to deal with violations of
human dignity caused by the territoriality of the modern state’ because in spite of
the fact that they are underpinned by universalistic ideas about human equality and
dignity they remain contextualized within the very particularistic framework of the
territorial state.3 What is problematic, however, and to a certain degree unex-
pected, is the fact that even the discourse of human rights, which aspires to be truly
universal and has developed outside a purely national context, has been unable to
abstain itself from relying on the idea of a state’s sovereign territory.4 In a rather
pessimistic vein, Lui maintains that ‘the refugee regime is a form of geopolitical
humanitarianism that has as its ‘‘core business’’ the preservation of the value of the
nation-state form.’5 Costello6 shows how the UDHR exemplifies this7: the latter,
for instance, refers to ‘the right to a nationality’ but not in the country of residence
or of choice; it protects the ‘right to freedom of movement and residence’ but only
‘within the borders of each state;’8 the ‘right to leave any country, including his
own, and to return to his country,’9 but not to enter another; and the ‘right to seek
asylum’ but not to be granted asylum.10 One would be led to believe that such
statist approach would have become obsolete in an age of human rights and yet in
the field of asylum it remains ‘‘ingrained in stone.’’11
For the EU to build a credible and robust asylum policy in Europe it will need
to identify concrete measures and instruments to adequately balance the tension
between the international obligations to admit protection-seekers (and to guarantee
access to a basic set of human rights) and the sovereign prerogative of the Member
States to control access to their territory. For this to be possible, it needs to ensure
in primis that EU asylum law is firmly grounded in fundamental human rights and
values. The missing link between the lex lata12 and lex ferenda13 of the EU asylum
regime is human dignity, the primacy of which is recognized in Article 1 of the EU
Charter which states that human dignity is inviolable and it must be respected and
protected14 and Article 2 TEU where human dignity is included as one of the
3
See Cornelisse (2011), see footnote 94 in Chap. 2, p. 221.
4
Idem.
5
See Ref. [2], at para 6; see also, Ref. [3].
6
7
See also the ECHR. E.g. Articles 2 (on freedom of movement) and 3 (on the prohibition of
expulsion of nationals) of Protocol No. 4 of the ECHR as amended by Protocol 11.
8
See Article 13(1) UDHR.
9
10
11
See Ref. [4].
12
Latin term meaning ‘what the law is.’
13
Latin term meaning ‘what the law ought to be.’
14
Emphasis added.
5 CEAS, Asylum-Seekers and EU Human Rights Post-Lisbon 107
values on which the Union is founded.15 The centrality of human dignity within
the system of the EU Charter can be seen also by the place assigned to human
dignity, namely Title 1, which provides the normative features of human dignity in
a cluster of key prohibitions assigning the concept with ‘its particular gravitas and
normative significance.’16 Protecting human dignity encompasses a duty to protect
the right to life,17 the right to physical and mental integrity,18 the prohibition of
torture, inhuman or degrading treatment,19 and the prohibition of slavery, forced
labour and human trafficking.20 The guarantee of these fundamental rights is at the
basis of the principle of non-refoulement and their protection is thus vital for
asylum-seekers. Significantly, the EU Charter is not limited in its scope of
application to Union citizens but also extends to TCNs. Only a few provisions are
limited to EU citizens, which are mainly to be found in Title V and even here there
are fundamental rights to which everyone is entitled to.21
Dupré aptly writes that human dignity as a constitutional foundation is a
response to times of inhumanity and it carries the hope that the regime created by
the constitution (which is based in dignity) will foster a democracy (comprising the
setting up of appropriate human rights and institutional design) in which human
beings can lead a meaningful life and shape their personal and political destiny.22
The core constitutional meaning of dignity, therefore, is the definition and pro-
tection of humanity.23 In a series of asylum cases we have seen that the ECJ has
already been called to shape the scope of human dignity. Arguably, in NS and ME,
the Court following the Opinion of the AG, provided the basis for elaborating a
15
Article 2 TEU further defines the connotations of human dignity by providing that the
foundational values of the Union ‘are common to the Member States in a society in which
pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men
prevail.’
16
See Ref. [5].
17
See Article 2 of the EU Charter.
18
19
20
21
For example, Article 41 of the EU Charter which protects the right to good administration and
Article 47 of the EU Charter on the right to an effective remedy and to a fair trial. When referring
to the institutions and bodies of the Union it also includes national authorities when they are
carrying out EU law (as per Article 51 of the EU Charter). Consequently, asylum-seekers can rely
on Articles 41 and 47 of the EU Charter for requesting that his/her claim be dealt with in an
impartial and fair manner and within a reasonable period of time. This argument is further
buttressed by the fact that asylum law and policy is now clearly within the remit of EU
competence. See e.g. Case C–277/11, M. M. v Minister for Justice, Equality and Law Reform,
Ireland, Attorney General, Judgment of 22 November 2012, where the ECJ held that that the right
to be heard as a fundamental right protected under in the EU Charter (Articles 41 and 47) and a
general principle of EU law, must be respected where a Member State considers applications for
subsidiary protection in a separate procedure from the refugee status determination (which has the
effect of excluding the application of the Procedures Directive), at paras 76 and 82–83.
22
See Ref. [5], see footnote 16, at 324–325.
23
Ibidem, at 325.
substantive definition of human dignity in the context of asylum24 and in future

cases it may add further substance to it.
The increased role of the ECJ also urges greater mutual engagement between
the EU asylum legal system and the ECHR regime in order to ensure what Costello
has coined as ‘‘constructive human rights pluralism,’’ which ‘describes the
desirable mode of interaction between human rights regimes, whereby each cul-
tivates a degree of openness to the others, while maintaining its own integrity.’25
An example of this can be seen in the minority opinion in Saadi, which showed
that appropriate engagement with the external International human rights law
standards would have led to a different result.26 MSS is also illustrative. The
ECtHR held that the detention and living conditions in Greece violated Article 3
ECHR on the basis that the legal commitments to provide reception conditions, in
particular under the Reception Conditions Directive, combined with asylum-
seekers’ particular vulnerability, create specific positive obligations under Article
3 ECHR.
Will this increased cross-fertilization be enough to ensure that the EU’s own
asylum regime is consistent with the protection imperative of international refugee
and human rights law, and that these supranational provisions are consistently
implemented across the EU? To achieve this, one solution could be EU accession
to the Geneva Convention, which is also mentioned in the Stockholm Pro-
gramme.27 However, a study conducted on CEAS illustrates problems concerning
its feasibility including technical legal problems for its realization.28
A proposal here put forward, in a modest and sketchy form, could be the
creation of an ad hoc EU asylum court to guarantee compliance with the rules of
the European asylum system.29 The creation of such judicial body would be in
combination with steps to improve the retrieval of information across the EU,
monitoring of Member States’ asylum systems as well as practical cooperation
between Member States,30 also via EASO, and aimed at engendering ‘‘positive’’
24
In particular, AG Trstenjak opined that the duty not to return derived from the positive
protective function inherent in Articles 1 and 4 of the EU Charter, see NS Opinion at para 112 and
ME Opinion at para 63.
25
See Costello (2012), footnote 173 in Chap. 3, at 260.
26
Ibidem, at 288.
27
See above, Stockholm Programme, infra Chap. 1.
28
See Labayle (2010), see footnote 145 in Chap. 2, at pp. 58–59 and pp. 434–446.
29
The European Commission has itself put forward a proposal for the creation of a ‘‘European
Authority on Asylum’’, see European Commission (2008), Communication from the Commission
to the European Parliament, the Council, the European Economic and Social Committee and the
Committee of the Regions—Action Plan on Asylum. An Integrated Approach to Protection
across the EU’ COM (2008) 260 final; for other similar proposals, see Ref. [6].
30
See Article 70 TFEU, which provides a special legal basis for the creation of a new evaluating
mechanism ‘to facilitate full application of the principle of mutual recognition,’ based on peer
review between Member States in collaboration with the Commission. Arguably, this article
provides the legal basis for setting up an OMC-like process in the field of asylum. This coordination
process could be modeled on the UNHCR’s Quality Initiatives (QI) projects which aim at
5 CEAS, Asylum-Seekers and EU Human Rights Post-Lisbon 109
mutual confidence and recognition of decisions between Member States. The

absence of an EU mechanism for monitoring human rights is problematic par-
ticularly in the light of Article 18 of the EU Charter. Moreover, the FRA does not
have a legal mandate to monitor the respect of human rights by the EU and its
Member States, but only to provide them with assistance and expertise.31
The legal basis for this new judicial body would be Article 257 TFEU, which
envisages the establishment of specialized courts, namely, the creation of a third
jurisdictional level below the ECJ and the General Court.32 While it is recognized
that this proposal may clash with reality and, in particular, opposition by the
majority of the Member States and perhaps also resistance of some NGOs, it would
be endowed with a number of merits, which, inter alia, would also address the
protection gaps present in CEAS. In particular, the creation of an EU asylum court
would address the increasing volume of asylum cases and the failure of national
courts to decide them promptly. In general terms, it would streamline and sys-
tematize the legal and judicial protection of individuals. Linked to this, it would
ensure a common understanding of the legal standards required and applicable to
asylum. Clearly, in order to meaningfully address the chief problem underlying
asylum policy and law, namely, the security paradigm, the establishment of such
judicial body would have to be predicated on ideas of shared and cooperative
sovereignty. The main judicial function of the EU asylum court would be to give
the final decision to grant protection, for example, on an appeal against a decision
of a domestic immigration court or tribunal. The decision of such judicial body
could then be subject to an appeal on points of law before the ECJ. It remains to be
seen whether this proposal will be taken into consideration at European level in the
future.
By way of conclusion, this investigation has unravelled the root-causes of
CEAS’ shortcomings, explaining why it is neither efficient nor fair by critically
improving the quality of asylum decision-making and using as a benchmark the extent of
inclusive application of the Geneva Convention in the context of the specific asylum issue
concerned, see e.g. the Asylum Systems Quality Assurance and Evaluation Mechanism (AQ-
SEM), set up in Central and Eastern Europe. Further information is available at: http://
www.unhcr-centraleurope.org/pdf/what-we-do/ensuring-legal-protection/refugee-status-deter-
mination/quality-initiatives-in-europe.html.
31
See Council of the European Union (2007), Council Regulation (EC) No 168/2007 of 15
February 2007 establishing a European Union Agency for Fundamental Rights, OJ L53/1,
22.2.2007, Article 4.
32
See Article 257(1) and (3) TFEU, which provides that: ‘The European Parliament and the
Council, acting in accordance with the ordinary legislative procedure, may establish specialised
courts attached to the General Court to hear and determine at first instance certain classes of
action or proceeding brought in specific areas. The European Parliament and the Council shall act
by means of regulations either on a proposal from the Commission after consultation of the Court
of Justice or at the request of the Court of Justice after consultation of the Commission (para 1).
Decisions given by specialised courts may be subject to a right of appeal on points of law only
or, when provided for in the regulation establishing the specialised court, a right of appeal also on
matters of fact, before the General Court,’ (para 3).
examining the latest reform of key EU asylum legislative instruments and a series
of cases of the Luxembourg and Strasbourg Courts. This is not to say that there has
not been any progress. Since Tampere, much has been achieved; unimaginable less
than 30 years ago. There now is a clearly identifiable EU asylum acquis and a
human rights discourse underlying EU measures. Further to the changes intro-
duced by the ToL, asylum policy sits among the areas of shared competence of the
EU, the EU Charter has acquired legally binding status, and the jurisdiction of the
ECJ has been expanded. There is also an on-going dialogue, however complex this
might be, between the European Courts. The next step, to use the words of
Goodwin-Gill, is to ‘translate the rhetoric of human rights protection into a
working reality’ thereby ensuring the effective protection of human dignity’s core
foundational elements and thus ensuring in primis access to asylum via adequate
reception conditions and asylum procedures, leading to a dignifying life for pro-
tection-seekers in Europe. As things stand, and in the light of the findings of the
present study, the way forward seems to be reform through the European Courts.
References
1. Goodwin Gill G (2008) Forced migration: refugees rights and security. In: McAdam J (ed)
Studies in international law: forced migration, human rights and security. Hart Publishing,
Oxford, pp 1–18
2. Lui R (2002) Governing refugees 1919–1945. Borderlands e J 1(1) Available via http://
www.borderlands.net.au/vol1no1_2002/lui_governing.html
3. Benhabib S (2004) The rights of others: aliens, residents and citizens. CUP, Cambridge 11
4. Dauvergne C (2004) Sovereignty, migration and the rule of law in global times. Modern Law
Rev 67(4):588–615
5. Dupré C (2013) Human Dignity in Europe: a foundational constitutional principl. Eur Public
Law 19(2):319–340
6. North AM, Chia J (2008) Towards convergence in the interpretation of the refugee convention:
a proposal for the establishment of an international judicial commission for refugees. In:
McAdam J (ed) Studies in international law: forced migration, human rights and security. Hart
Publishing, Oxford pp 225–262

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SPRINGER BRIEFS IN LAW

For further volumes:

Reforming the Common

ISSN 2192-855X ISSN 2192-8568 (electronic)

Library of Congress Control Number: 2013946311

The Author(s) 2014

Printed on acid-free paper

Springer is part of Springer Science+Business Media (www.springer.com)

July 2013 Samantha Velluti

2 The Road to the Common European Asylum System:

3 Recasting of Asylum Legislation: Nolumus leges mutari! . . . . . . . . 39

4 The Role of the European Courts in Ensuring Adequate

5 CEAS, Asylum-Seekers and EU Human Rights Post-Lisbon:

By drawing on a human rights-based and de-constructivist approach, this volume

S. Velluti, Reforming the Common European Asylum System - Legislative 1

changes from the perspective of protection-seekers’ human rights, which in con-

1. Legrand P (ed) (2009) Derrida and law. Ashgate, Farnham

2.1 Harmonization in Asylum and, Sovereignty

S. Velluti, Reforming the Common European Asylum System - Legislative 5

structures. However, the importance placed on national sovereignty and statehood

still be a modal tendency that pulls actors back to conventional sovereignty.’13 In

This form of ‘‘organised hypocrisy’’21 is not unsurprising. Brunsson argues that

asylum-seekers34 whereas the Council focused largely on the prevention of abuse

2.1.1 Refugee Protection and International Refugee Law

Convention constitutes the centrepiece of international refugee protection38 by

under international law.44 Compliance with EU law, therefore, may be said to be

2.1.2 The Treaty of Amsterdam, EU Competence

independence.58 Self-will is a state’s motive force: it impels a state from within,

2004) involving the adoption of harmonizing Directives and Regulations on the

Ministers- constitute a true expression of Member States’ concerns and objectives

truly comprehensive asylum policy and, specifically, to improve the practical

2.1.3 Key Changes to the Legal Framework since the Treaty

the Court.104 Already under the circumscribed Article 68 EC procedure formerly

amendment. First, the great number of preliminary proceedings in the Court0 s

(Footnote 126 continued)

According to the European Commission the development of CEAS entails

2.1.4 The Significance of the EU Charter of Fundamental

of international, including regional, human rights instruments.137 With the entry

préparatoires and explanations drafted by the Presidium143 as well as the con-

Consequently, following this reading Article 18 of the EU Charter cannot be

2.1.5 From ‘‘Minimum’’ to ‘‘More Favourable Standards’’

(Footnote 154 continued)

From a narrower perspective, it may be questioned the extent to which it is

1. Gallie WB (1956) Essentially contested concepts. Proc Aristotelian Soc 56:167–198

125. Hailbronner K (2008) Towards a common european asylum system—assessment and

3.1 The Dublin III Regulation: (Still) in Search

Latin adage: ‘We do not want the laws to be changed.’

S. Velluti, Reforming the Common European Asylum System - Legislative 39

cumbersome procedure to the beginning of the asylum process.28 This lengthy

administrative tool for establishing Member States’ responsibility for examining

A so-called ‘‘early warning system’’ has replaced the Commission’s proposed

individual assessment of each case and only in so far as detention is proportional

3.2 The New Qualification Directive:

suspected of being manufactured. Asylum claims sur place must be assessed on

access to employment is a case in point. In particular, while refugees could be

3.3 The Recasting of the Asylum Procedures Directive:

ECtHR. The final compromise text contains a number of strengthened procedural

Article 2(d)120 included a clear definition of such applicants which disappointingly

the determining authority is envisaged127 and obligations for applicants for