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Caught You Red-Handed

Tu Ne Cede Malis, Sed Contra Audentior Ito

It will be a new agency. It will be an enforcement agency. It will be the European Union Agency for Asylum! No wait… it will be EASO

The president of the European Commission, in his letter of intent accompanying the September 2015 State of the Union speech, announced that the Common European Asylum System (CEAS), the Dublin System, and Easo would be comprehensively reviewed. From May to July 2016, the Commission put forward a wide-ranging European Asylum package, which reformed the Regulations of Dublin and Eurodacas well as the Reception Conditions Directive, and which proposed the establishment of a common asylum procedure in the EU,a Qualification Regulation, a Union Resettlement Framework,and a European Union Agency for Asylum(EUAA).

While the Council and the European Parliament reached an agreement on 28 June 2017 on all twelve chapters of the regulation on the future EUAA, “an overall agreement will only be possible once the linkages with the other legislative proposals in the CEAS package have been resolved”. That is, the final adoption of the new EUAA Regulation will not take place until the whole asylum package is finalized (Italy, Spain, Greece, Cyprus and Malta aim to strike a difficult deal by June’s summit of European leaders). However, since negotiations are already well advanced, the core provisions of the Regulation on the EUAA will not substantially differ from the text partially agreed between the Council and the Parliament. This blog post thus zooms in on the key operational novelties of the text, which was partially agreed upon by the Council and the Parliament on 28 June 2017, and analyzes what changes these novelties would bring to the current mandate of Easo.

Although the EUAA will not be mandated to set out a comprehensive strategy of asylum, the agency, through guidance on the situation in third countries of origin, shall “ensure greater convergence and address disparities in the assessment of applications for international protection” (Proposal for a EUAA, COM(2016) 271 final, 04.05.2016, p. 7). The EUAA shall “develop a common analysis on the situation in specific countries of origin and guidance notes to assist Member States in the assessment of relevant applications” (article 10(1) partial agreement EUAA). Importantly, as soon as the EUAA’s Management Board endorses the guidance notes, accompanied by the common analysis, the Member States shall take them into account when examining applications for international protection, without prejudice to their competence for deciding on individual applications (article 10(2a) partial agreement on the EUAA).

The new monitoring role of the EUAA will also indirectly shape a common strategy of asylum in the EU. A key difference between Easo and the future EUAA will be its monitoring role in order to guarantee that the national authorities are sufficiently prepared to manage exceptional and sudden pressure in their asylum and reception systems. Should the EUAA’s information analysis raise serious concerns regarding the functioning or preparedness of a Member State’s asylum or reception systems, the agency, on its own initiative or at the request of the European Commission, may initiate a monitoring exercise (article 14(2) partial agreement EUAA).

The Member State concerned will receive the findings of the monitoring exercise and the draft recommendations of the EUAA’s Executive Director for comments. As soon as the agency takes the concerned Member State’s comments into account, the EUAA’s Management Board shall, by a decision of two-thirds of its members with a right to vote, adopt those recommendations (article 14(3a) partial agreement EUAA). As with the EBCG’s vulnerability assessments (article 13 Regulation 2016/1624), the future EUAA will be conferred a recommendatory power in order to put forward measures to be adopted by the national authorities. Nevertheless, Member States will still maintain indirect control of the EUAA’s recommendations (see, here) through the enhanced majority that is required in the Management Board.

Whereas the Commission did not initially propose that the EUAA’s Executive Director be able to appoint experts from the staff of the agency to be deployed as liaison officers in Member States, the provisional text agreed on 28 June 2017 indicated that liaison officers “shall foster cooperation and dialogue between the Agency and the Member States’ authorities responsible for asylum and immigration and other relevant services” (article 14a(3) partial agreement EUAA). Like the EBCG’s liaison officers, the EUAA liaison officers will facilitate the monitoring role of the agency by reporting regularly to the Executive Director on the situation of asylum in the Member States and their capacity to manage their asylum and reception systems effectively (article 14a(3) partial agreement EUAA).

The EUAA will thus be in charge of monitoring “the operational and technical application of the CEAS in order to prevent or identify possible shortcomings in the asylum and reception systems of Member States and to assess their capacity and preparedness to manage situations of disproportionate pressure so as to enhance the efficiency of those systems” (article 13(1) partial agreement EUAA). With this aim, the agency shall namely assess the national procedures for international protection, staff available and reception conditions (i.e. infrastructure, equipment or financial resources) on the basis of the information provided by the Member State concerned and by relevant intergovernmental organizations or bodies,as well as information analysis on the situation of asylum and on-site visits that the agency may undertake (article 13 (3) and (4) partial agreement EUAA). This new monitoring task of the EUAA shall ultimately contribute to the effective and harmonized implementation of the CEAS by the Member States (see, here, here and here).

The second substantial novelty that the EUAA will bring is the possibility of making an emergency intervention if the functioning of the CEAS is jeopardized due to the insufficient action of a Member State to address the disproportionate pressure on the asylum and reception systems in a Member State (article 22(1)partial agreement EUAA), the refusal of the competent national authorities to request or accept assistance from the EUAA (article 22(1)partial agreement EUAA), or the unwillingness of a Member State to comply with the Commission’s recommendations to implement an action plan intended to address serious shortcomings identified during a monitoring assessment (article 14(3a)partial agreement EUAA).

The procedure set out in article 19(1) Regulation 2016/1624 of the EBCG regarding situations at the external borders requiring urgent action will be, to a more limited extent, replicated for the EUAA. While the proposal for a Regulation on a EUAA originally stated that the Commission would be the EU institution in charge of adopting a decision by means of an implementing act to be taken by the agency to support the Member State concerned, the provisional text finally states that the Council shall be the authority responsible for adopting such an implementing act.

Three days after the Council adopts its implementing act, the EUAA’s Executive Director shall draw up an Operational Plan and determine the details of the practical implementation of the Council’s decision (article 22(2) partial agreement EUAA). Subsequently, the Member State concerned will have three days to reach an agreement with the Executive Director on the Operational Plan and will immediately cooperate with the agency to facilitate the practical execution of the measures put forward (article 22(4) partial agreement EUAA). The Regulation of the EUAA under negotiation does not yet include a similar provision as article 19(10) Regulation 2016/1624, which indicates that if within 30 days a Member State neither executes the decision adopted by the Council nor agrees with the EBCG’s Director Operational Plan, the European Commission may authorize the re-establishment of border controls in the Schengen area.

The third novelty of the future EUAA in comparison to its predecessor Easo will be its involvement in the examination of international protection applications. Several provisions of the EUAA mention that the agency will assist or facilitate the Member States in examining the applications of international protection submitted to their asylum systems. Firstly, among the operational and technical assistance that the EUAA shall provide to Member States, the agency shall facilitate the examination of applications for international protection (article 16(2)(b) partial agreement EUAA) to the competent national authorities. In this regard, the Asylum Support Teams (ASTs) “should support Member States with operational and technical measures, including (…) by knowledge of the handling and management of asylum cases, as well as by assisting national authorities competent for the examination of applications for international protection and by assisting with relocation or transfer of applicants or beneficiaries of international protection” (recital 16 partial agreement EUAA).

Secondly, the operational plan that the Executive Director of the EUAA draws up shall also include organizational aspects such as the assistance of the agency to the Member States in examining applications for international protection, without prejudice to the competence of the national asylum systems to decide on individual applications (Article 19(2)(i) partial agreement EUAA). Lastly, the EUAA in the hotspots will be competent to not only register the applications for international protection, but to also examine such applications if the concerned Member State requests so (article 21(2)(d) partial agreement EUAA).

The Regulation does not yet specify to what extent the EUAA may assist or facilitate the competent national authorities in examining applications for international protection. The negotiations regarding the final text of the recital 46 of the EUAA’s Regulation reveal the tensions for regulating and limiting the “examination powers” of the agency. The text put forward by the European Commission for the recital 46 states that “the competence to take decisions by Member States’ asylum authorities on individual applications for international protection remains with Member States”. The Commission clearly establishes that the EUAA cannot be conferred decision-making powers. The European Parliament, however, adds that this limitation should not preclude “the joint processing of applications for individual protection by a Member State and the Agency at the request of the Agency and within the framework set out in an operational plan agreed between the host Member State and the Agency”. Lastly, the Council considers that “the competence of Member States’ asylum authorities to take a decision on individual applications for international protection should remain unaffected”.

The question to be answered is whether the EUAA will be able to jointly process applications for international protection, and if it cannot, to what extent the agency may support the processing of asylum applications. In 2013, the Commission adopted a study in which the concept of “joint processing” was defined as “an arrangement under which all asylum claims within the EU are processed jointly by an EU authority assuming responsibility for both preparation and decision on all cases, as well as subsequent distribution of recognized beneficiaries of international protection and return of those not in need of protection” (p. 114).

The 2013 study of the European Commission on joint processing put forward four options that progressively move from supporting the Member States in processing asylum applications, to designing a centralized EU authority with decision-making powers and responsible for all asylum processing. Currently, the Member States are solely competent to adopt decisions concerning the admissibility and applications for international protection and Easo is mandated to operationally support the competent national authorities in preparing and reaching such decisions.

The next level of European integration would consist in introducing the mechanism of joint processing in situations where a Member State is subject to an extraordinary number of asylum applications. Joint processing teams of Easo would be deployed and make recommendations on asylum cases to the requesting Member State, which would continue to have exclusive decision-making powers. The ASTs of Easo deployed in the Greek hotspots are in practice adopting recommendations on the admissibility of the international protection applications, recommendations that the Greek officials largely rubberstamp when adopting a final decision (see here, here and here). Precisely, the future EUAA, upon the request of a concerned Member State, will be formally conferred the power to examine applications for international protection in the hotspots, as well as the task to facilitate the examination of such applications not necessarily under the hotspot approach to the competent national authorities.

However, the EUAA will be very far from processing and deciding every asylum application within the EU. Instead, the future Regulation on the EUAA opts for reinforcing the operational tasks of the agency and maintaining the Member States as the exclusive decision-making authorities. Although centralizing the asylum decision-making process would ensure a full harmonization of the national procedures and foster a consistent evaluation of the protection needs, this option would demand a “major institutional transformation” and “substantial resources” than can only be envisioned in the long-term. In other words, the transformation of Easo into an agency with decision-making powers to process all the applications for international protection in the EU is still a rather hypothetical scenario since the Member States’ sovereignty would be challenged, a complete overhaul of Easo and all CEAS legislation would be required, and a specialized court or board would need be created.

There are also doubts as to whether article 78(2) TFEU is a sufficient legal basis for conferring the power to exclusively adopt binding decisions on all asylum claims to a EU authority. Pursuant article 78(2) TFEU, the EU shall ensure: “(…) common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status”. On the one hand, TSOURDIbelieves that a EU-level processing scenario in which decisions are taken entirely by a EU authority instead of the Member States is legally impossible under article 78(2)(e) TFEU “which envisages that ‘a Member State’ is ultimately responsible for the examination of an application”. On the other hand, the 2013 Commission’s study on the feasibility of joint processing of asylum applications in the EU considered that article 78(2) TFEU, read together with articles 78(1) and 80 TFEU, represent an adequate legal basis and open up the possibility for a completely harmonized, EU-based approach for joint processing of asylum applications within the EU.

Hence, as is the case with the EBCG that does not establish a European System of Border Guards with autonomous enforcement powers to exclusively manage the European external borders (see here, here, here or here), the future EUAA will not be directly conferred decision-making powers in asylum matters either, but rather will be given an assistance role in examining applications of international protection (see here). It remains to be seen whether the EUAA will openly interpret its new and vaguely regulated examination prerogative, and to what degree the agency will examine the applications for international protection and exert an indirect impact on the final decisions that the national asylum systems ultimately will adopt.

To conclude, although the Commission refers to the future EUAA as a fully-fledged agency for asylum matters in the EU, the agency will neither be conferred decision-making powers regarding asylum applications, nor executive tasks on the ground. As with the mandate of Easo, the tasks to be conferred to the future EUAA are limited to “facilitate and improve the proper functioning of the CEAS and to assist Member States in implementing their obligations within the framework of CEAS, the European Union Agency for Asylum should provide Member States with operational and technical assistance(…)” (p. 15).

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