Abstract
Since Tampere, the EU has rapidly and distinctly asserted itself as a major player in the international refugee regime. CEAS concerns many aspects of asylum, 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.
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Notes
- 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.
- 3.
See Cornelisse (2011), see footnote 94 in Chap. 2, p. 221.
- 4.
Idem.
- 5.
- 6.
See Costello (2012), see footnote 173 in Chap. 3, at 261.
- 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.
See Article 13(2) UDHR.
- 10.
See Article 14(1) UDHR.
- 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.
- 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.
See Article 3 of the EU Charter.
- 19.
See Article 4 of the EU Charter.
- 20.
See Article 5 of the EU Charter.
- 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.
- 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 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 (AQSEM), 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-determination/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).
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Velluti, S. (2014). CEAS, Asylum-Seekers and EU Human Rights Post-Lisbon: Closing the Gaps in the European Protection Regime. In: Reforming the Common European Asylum System — Legislative developments and judicial activism of the European Courts. SpringerBriefs in Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-40267-8_5
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