The Legal Acts of the CEAS

The legal acts of the CEAS incorporate the following five areas:

• The Dublin III Regulation

• The Temporary Protection Directive

• The Reception Directive

• The Qualification Directive

• The Asylum Procedures Directive

The Dublin III Regulation

The Dublin III Regulation¹⁵ is based on the Dublin agreement,¹⁶ which establishes linkage elements¹⁷ according to a strict sequence in order to link the asylum applications to a MS (i.e. it defines the MS responsible for the asylum procedure). Due to this the asylum applicant cannot choose his/her country of asylum freely within the EU. The linkage elements defined in the regulation are the following: 1. family contacts; 2. issued residence permit or visa;

3. if none of these linkage elements can define the MS responsible for the asylum procedure, the countries of first entry (the state) will take over the responsibility; 4. if these linkage elements do not give a guideline to define the MS responsible for the asylum procedure the procedure has to be conducted in that MS where it was lodged.

The MS which is responsible for the asylum procedure has to be sought as soon as possible, and the MS has to answer this take-over request within two months. If the asylum applicant absconds during the asylum procedure, and seeks for asylum in another MS, either after his/her application being refused or withdrawn, the MS where the procedure is being conducted has to take him/her over. The request should be answered within one month, in case of a Eurodac-hit, within two months. After approval, the asylum applicant should be taken back within six months. The fingerprint registered in the Eurodac-system¹⁸ makes the identification easier for the MS responsible for the asylum procedure.

The Temporary Protection Directive

The Temporary Protection Directive¹⁹ assigns the minimum standards of temporary protec-tion in case of mass influx of asylum seekers and enables the well based balance between the MSs. Mass influx is the situation when from a single third-country or from a single area

15 Official Journal of the European Union (A).

16 Intergovernmental agreement between the MSs of the European Union on asylum issues. The agreement was signed in 1990 but came into force in 1997 and was the ancestor of the Dublin Regulation.

17 Kende (2015): op. cit. 531.

18 The Eurodac system enables the identification of the border-sequence where the entry to the respective state occurred and also enables the identification of the fingerprints of the illegal border crossers and makes possible the comparison of the stored data with the data requested by the national authorities where the person entered the MS.

19 Official Journal of the European Union (B).

in several third-countries huge number of asylum applicants arrive in the MS. The Council of the European Union should decide whether this condition is relevant. The length of the protection ensured by the Council is one year which can be prolonged twice with six months.

The temporary protection does not replace the individual asylum procedure or the granting of the refugee status according to the Geneva Convention. It enables the overloaded authorities a maximum two years of moratorium to conduct the procedure. The directive ensures the persons taken under subsidiary protection, rights similar to the recognized refugees, they are allowed to access the labour market and the right of family reunification is also possible for them.

The Reception Directive

The Reception Directive²⁰ regulates the common rules of accommodations of the asylum seekers, after its amendment, it also regulates the conditions of detention of the asylum seekers. If the asylum seekers are not in possession of financial resources or this is what they claim – which is characteristic of most of the asylum procedures, the state should supply them on a minimal level, which means that it should supply them with accommodation, food and in case of minor asylum applicants the access to education should be ensured, as well.

The Qualification Directive

The Qualification Directive²¹ contributes to the common understanding of the refugee definition of the Geneva Convention and reacts to the achievement of the 21^st century that the asylum seeker is not “the typical Eastern-European intellectual, who »votes with his/her feet« (leaves the country) because of the repression of central state power and flees to the West but those persons became asylum seekers because they fled from civil war, from the war-torn zone of the failed states or from the extremists”.²² The category of subsidiary pro-tection was introduced to these categories. Persons can be taken under this category if there is a well-funded danger that they will be persecuted after returning to their home country.

An important component of the directive is, that it describes and formulates some of the main categories of the Geneva Convention, like persecution, persecutor, the reasons of persecution and it defines the rights connected with the refugee status and the subsidiary protection status in the area of family reunification, healthcare, and remunerative activities.

Another novelty of the directive is, that it lowers the obligation of the MSs because the grant-ing of international protection can be refused, if a safe area of protection is available within the country, in other words, there is an internal alternative for protection. One of the most important improvements of the directive is that it introduces the category of persecution. In this case the oppression is realized by non-governmental actors, either by an organization or by one’s own family. One of the Commission’s proposals of 2016 recommends replacing

20 Official Journal of the European Union (C).

21 Official Journal of the European Union (D).

22 Kende (2015): op. cit. 531.

the Qualification Directive with a regulation, setting uniform standards for the recognition of people in need of protection and for the rights granted to beneficiaries of international protection.²³

The Asylum Procedures Directive

The Asylum Procedures Directive²⁴ specifies the minimal guarantees of the procedure in which a decision is taken on the refugee status; it regulates the procedure of taking the asylum applicant under refugee status or under subsidiary protection. This directive defines the administrative procedure, the juridical phase and the special procedures. The Asylum Procedures Directive reduced the possibilities of accelerated procedures and ensured more guarantees for legal assistance and it enables more considerate procedure for the vulnerable groups.

This directive regulates the withdrawal of statuses, the administrative and juridical procedures against these types of decisions. Among the minimal guarantees it should be outlined that every adult asylum seeker is entitled on his/her right to apply for asylum and the examination of his/her application should be done on an objective and independent way. The asylum applicant should be interviewed personally, and a written, well-grounded decision should be taken in his/her case.

Some types of accelerated procedures can be distinguished from the normal procedure where the minimal guarantees of the procedure apply but the deadlines can be shorter. The directive also describes the cases when the application is inadmissible, when for example the applicant has already applied for asylum in another MS, either there is an MS which is the first state of protection or the category of a safe third-country can be applied. The application is also inadmissible if the applicant submits new asylum application without confining himself/herself to new facts or he/she as a dependant relative gives up the right of submitting an application.

The introduction of the category of a safe country of origin excludes the possibility of recognition as refugee while the category of a safe third-country does not doubt this but it passes the right of recognition to another country.

Basic elements of the CEAS

Apparently the CEAS is a well-developed system which ensures protection and it has both legal and political effect to the international asylum protection systems. The MSs strived to have some responsibility areas of their own and improved rules which were not covered by the 1951 Geneva Convention, for instance asylum procedures.

The establishment of the EASO is the proof that the MSs succeeded to build a form of cooperation on a higher level and to set up an institutional framework for the former quite infrequent cooperation and exchange of experience. The MSs tried to strengthen the scope

23 European Parliament.

24 Official Journal of the European Union (E).

of their cooperation outside the EU and to enhance the possibility of access to asylum in third-countries, as well.

The EU’s efforts are sometimes blocked in the field of asylum policy, because it has not yet been defined adequately what the methodology of equal burden-sharing between the MSs would be. Accordingly, if a MS claims excessive burden, other MSs often criticise it that its demand on more resources is unfounded. Solidarity can be enhanced if the MSs have more confidence in each other.

According to the adopted regulations and directives, the CEAS is already functional and its institutional framework already works. Although the institutions controlling and assessing the irregular migration movements like FRONTEX and Europol are operational, there is no common European asylum procedure. The current asylum system is a fragmented one, which does not necessarily take into account the interests of the MSs and solidarity between them works on a minimum level.

It can be concluded that this irregular migration-related situation is the crisis condition of the European systems which are responsible for the control of migration and due to the deficient control, the institutions dealing with asylum affairs reached a crisis, as well and in a wider sense the EU itself.

This paper argues that the current case is merely the crisis of functionalities of the system. It is doubtful whether the situation which occurred in 2015 and has generally char-acterised the European asylum policy since then, can be described with one of the criteria which we got to know from the definition of crisis. Does it head towards destruction or is it able to renew and improve from the current situation?

The reason of the dysfunction of the CEAS

The dysfunctionality of the CEAS had already begun in the years before 2015, during the time of the revolutionary movements called the Arab Spring when some of the MSs expressed their concern about the potential increase of irregular migration movements from North Africa and from the Middle East. The critical situation occurred in the field of asylum, which raised debates in the French and Italian society already in 2011 when at the border between the two states temporary border control was set up in order to prevent the mass influx of potential asylum seekers to France.²⁵

International migration became a determinant of the political campaigns of the coun-tries to a stronger extent in other parts of the World, as well. Just take into account the German and Austrian early elections in 2017. Due to the protest of public opinion and the policy debates,²⁶ some of the countries indeed changed their asylum and immigration pol-icy, most of these changes hampered immigration and the access to the asylum procedure.

“Moreover, such legislative changes have been accompanied by an increase in the budgets devoted to migration controls in several Member States. Those have invested vast

25 The Guardian, 2011. France and Italy in call to close EU borders in wake of Arab protests. Available: www.

theguardian.com/world/2011/apr/26/eu-borders-arab-protests (Accessed: 17.10.2017)

26 The Telegraph, 2011. France and Italy to propose European border reform. Available: www.telegraph.co.uk/

news/uknews/immigration/8472417/France-and-Italy-to-propose-European-border-reform.html (Accessed:

17.10.2017)

amounts of money into sophisticated technologies in order to strengthen migration controls.

One example is the electronic tagging of asylum-seekers in the UK, which aims to prevent people from absconding during the processing of their asylum claim. Nevertheless, the most prominent illustration of this trend is certainly the acquisition of technological devices – in-cluding some originating from the military sector – in order to intercept migrants at border sites.”²⁷ As the quotation suggests this was already the tendency in 2002.