Asylum law in the European union: Its concept and development

Annotation: The article focuses on the Asylum law in the European Union. It is divided into two relatively separate parts. The first part of the article concentrates primarily on defining and explaining the term "asylum". Above all, what the term of asylum represents as an institute and a concept. The second chapter describes it from the point of view of its historical genesis in the European Union.
Keywords: asylum, European union, concept, development, structure, refugee

Anotácia: Článok je zameraný na azylové právo v Európskej únii. Je rozdelený do dvoch relatívne samostatných častí. Prvá časť článku je zameraná primárne na definovanie a vysvetlenie termínu „azyl“. Predovšetkým teda toho, čo pojem azylu predstavuje ako inštitút a koncept. Druhá kapitola popisuje tento pojem z pohľadu jeho základnej historickej genézy v priestore Európskej únie.
Kľúčové slová: azyl, Európska únia, koncept, rozvoj, štruktúra, utečenec

Introduction

The Asylum law or the right to asylum and the related refugee crisis is nowadays a frequently discussed topic. In recent years the number of asylum seekers in the European Union increased approx. by 44%¹ This increase had been mainly caused by the war in Syria, the difficult political situation of countries in the Middle East, as well as the conflict in Ukraine. The current onslaught of refugees puts elevated pressure particularly on countries with external borders of the European Union that are no longer handling the situation or had failed to manage the situation for some time.

In addition to the Geneva Convention on Refugees, the European Union law is very essential at the European level, because the European Union per se is committed to creating a Common European asylum system. Following the adoption of the Treaty of Amsterdam, several directives and regulations were made, some of which have already undergone revisions. Common European Asylum System (CEAS) should be effective, fair, and based on solidarity between the Member States.

This article seeks to present the asylum system of the European Union and elucidate its concept, development, history, as well as some parts of its legal structure, most significant documents, and features of secondary law.

EU asylum law is a very broad topic, which went through its development and it undoubtedly deserves our attention. The development of individual grounds of persecution under which states grant asylum to refugees is rather a theme of great importance as well. However, this issue is beyond the scope of said Article.

Asylum as an institute and a concept

Asylum is a very old institute of both religious and legal origin. The term itself originally referred to a shelter where one could hide from persecutors. The institution of asylum has been known since ancient times, but back then it had a purely national character. In the past, under the protection of the church, it could resort only to perpetrators of petty crimes and not political offenders who, thus, could not escape prosecution of state power.

The terms asylum and the right to asylum had undergone great changes in the past and lost their original simplicity. With the development of national jurisdiction of various states, the
institution of asylum has begun to mean not only a shelter, but also a right to protection for certain persons. ²

The term asylum does not have a single fixed meaning, it is used in various senses and contexts. The definition of asylum, adopted at a conference of the Institute of International Law in 1950 says that "word asylum means protection provided by the State on its territory or elsewhere for individuals who came to ask for it." ³

This definition is satisfactory even after all this time, although it must be specified. An individual must be a person who is not a citizen of the state where he or she requests asylum. This individual then seeks protection from the dangers and threats that he or she faces abroad, outside of the jurisdiction of the state, in which one seeks international protection.
The Treaty on European Union connects the term asylum with protection under the Geneva Convention on the Status of Refugees of 1951 ("the Geneva Convention").

Today we understand the term refugee as „an objective condition of a person who meets the requirements of the refugee definition under the Geneva Convention.“ ⁴

An Asylum holder is then a refugee, whom a certain state has granted asylum and the associated rights and obligations.

In the current EU law, which my home country´s (Slovak Republic) legislation is also affected by, asylum falls within the scope of international protection.

International protection is divided into asylum and subsidiary protection. Subsidiary protection, which is based precisely on EU law, should be granted to a foreigner who does not meet the conditions for being granted asylum (well-founded fear of being persecuted due to racial, social, political reasons), but may face persecution and be in danger of serious harm in the country of origin. Subsidiary protection, unlike the asylum, is granted only temporarily, but at least for the duration of one year. Upon the expiry of the period for which the subsidiary protection was granted, it is examined whether the grounds for subsidiary protection still last. Subsidiary protection can then be repeatedly extended. ⁵

Institute of subsidiary protection and reasons for its granting should include a guarantee of following the principle of non-refoulment. Non-refoulement is a principle of international law that forbids rendering a true victim of persecution to one's persecutor. Generally, the persecutor in mind is a state actor.⁶

The history of Asylum law in the European Union

As is known, the original objectives of the European Community were mainly economic interests and not the harmonization of asylum law. The Member States, most importantly, sought to achieve the creation of an internal market, which should exist in an area without internal borders. The above is automatically associated with human migration. Creating the internal market also required a harmonization of migration policy and asylum law. ⁷

At the beginning of the whole process, however, the Member States were not willing to lose control over the entry of third-country nationals into their territories, and the Community law was therefore not giving enough attention to this matter for some time. Nevertheless, the interests in the abolition of internal borders were gradually rising and, thus, in 1985 the Schengen Agreement on the gradual elimination of checks at the common borders was ratified by the majority of Member States. ⁸

In the year of 1990, there was also adopted the Schengen Convention, which, together with the Schengen Agreement, is called Schengen acquis. By adopting the Treaty of Amsterdam, the Schengen acquis has become a part of the legal system of the European Union and it, therefore, enabled conducting a common border regime and a common migration policy. ⁹

Another important act of the unification process was the adoption of the Dublin Convention, which was signed in 1990 by all the member states and came into force in 1997. The Dublin Convention introduced a system determining the 'responsible country', which is a method of determining a country being responsible for the assessment of individual applications for asylum. The Dublin Convention was to prevent the so-called "Asylum shopping" phenomenon from happening (thanks to the institute of free movement the asylum seeker would be able to apply in several states, and it was hence not clear which of the states concerned had to consider the application). ¹⁰

The Maastricht Treaty of 1992, which laid the foundation for the European Union, included asylum policy in EU primary law.

Specifically, asylum policy fell under the scope of the third pillar, which was not very effective, because under the third pillar it was being decided under the intergovernmental principle of unanimous consent of all member states. ¹¹

During the validity of the Maastricht Treaty, moreover, the secondary EU law did not represent a superior legal system to the legislations of the Member States and the primary law did not provide any competence to issue supranational legal acts, which would have direct effect in Member States. ¹²

The breakthrough in the whole process came by the adoption of the Amsterdam Treaty (in force since 1999), which transferred the asylum issues from the third to the first pillar. The asylum was transferred from the level of the EU into the community sphere. This fact anchored in the Treaty establishing the European Community meant the legal basis for the creation of a Common European Asylum System. The EU was consequently able to issue a directive and a regulation superior to the national legislation of the Member States.

The Amsterdam Treaty also stated that within five years from its inception, certain measures would be taken to ensure the free movement of persons linked with the accompanying measures applying to external border controls, the areas of asylum and immigration included. These measures should be conducted in line with the conclusions of the European Council in Tampere, which took place in the year 1999. Through this agreement, asylum measures should not be just independent rules on isolated issues, but it should adopt a comprehensive Common European Asylum System (CEAS) preserving the Geneva Convention. ¹³

The Treaty of Nice in 2000 brought just a marginal change to the field of asylum. More important for this issue was the proclamation of the Charter of Fundamental Rights of the European Union, whose legal status was unclear since it was more of a political declaration, however, the right to asylum and the principle of "non-refoulment" have been confirmed therein. ¹⁴

Another revolutionary change in EU primary law and asylum policy has resulted from the adoption of the Lisbon Treaty in 2007, which extended the powers of the EU to create a Common European Asylum System. The modification in this treaty does not only lead to minimal standards, but to a uniform legal system of asylum law.

The Lisbon Treaty, therefore, represents the second phase of the Tampere´s programme, as well as the development of a Common European Asylum System, which has led to a unified asylum procedure and a uniform status for those granted asylum throughout the whole EU. ¹⁵

Conclusion

The article was dealing with the topic of Asylum law in the European Union. It is divided into two relatively separate parts. The first part of the article concentrates primarily on defining and explaining the term "asylum". Above all, what the term of asylum represents as an institute and a concept. The second chapter describes it from the point of view of its historical genesis within the European Union.

The Common European Asylum System, which directs the EU since the adoption of the Amsterdam Treaty, should ensure a common asylum procedure in all Member States. This system is meant to be fair and just. In light of the foregoing, it may be concluded that the Asylum system is still undoubtedly evolving, the legislation of asylum law is much more comprehensive than it was in the past and we can also say that it is on a good track to a common asylum procedure in the Member States.

The author of the article based his work on several sources from renowned authors, highly proficient in the topic. Several scientific methods were used in preparing the article, in particular the method of analysis, synthesis, comparison, historical method, and descriptive method.

Author: JUDr. Samuel Csóka

References

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¹⁴ Charter of Fundamental Rights of the European Union, art.18, art.19
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