EU s Asylum Policy and the Danish Justice and Home Affairs Opt-Out

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1 EU s Asylum Policy and the Danish Justice and Home Affairs Opt-Out Marlene Wind, Professor and Director of Centre for European Politics, Department of Political Science, University of Copenhagen Professor at icourts & University of Oslo

2 Agenda 1. The background and legal framework 2. The current refugee crisis and the uneven burden-sharing 3. Why no real common EU policy? 4. Denmark and the Danish opt-out on Justice and home affairs will changing the opt-out status change much when it comes to asylum seekers?

3 EU s Asylum Policy The Dublin Convention from 1990 (revised in 2013) an intergovernmental agreement on determining responsibility among the EC Member States for handling asylum applications. The Treaty of Amsterdam 1998 moved immigration and asylum policies from the intergovernmental level to the supra-national level, and provided the EU institutions with new powers to draw up legislation in the areas of immigration and asylum. At the Tampere Summit in 1999 the first steps to a Common European Asylum System (CEAS) were taken.

4 What does the treaties say? In 2009 art. 18 of the Charter of Fundamental Rights on the Right to Asylum was included in the Lisbon Treaty and the Article 78 in TFEU stipulates that: The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.

5 The EU Member States re-committed themselves to CEAS in the Stockholm programme and agreed that: Efforts must be made to set up the Common European Asylum System (CEAS) by By providing a common asylum procedure for EU countries and a uniform status for those who have been granted international protection, the CEAS would create an area of protection and solidarity within the EU. Again in June 2014 the European Council s commitments were reaffirmed in its conclusions: The Union's commitment to international protection requires a strong European asylum policy based on solidarity and responsibility. The full transposition and effective implementation of the Common European Asylum System (CEAS) is an absolute priority. ( ) Converging practices will enhance mutual trust and allow to move to future next steps.

6 CEAS thin Legal Framework Open boarders and freedom of movement create a need for a common and joint approach within the area of asylum and immigration. The aims of CEAS are to create common standards and harmonise procedures. to secure asylum applicants are treated equally where ever in the Union they apply for asylum. Key Directives and Regulations The Asylum Procedures Directive (2005, recast 2013) The Reception Conditions Directive (2003, recast 2013) The Qualification Directive (2004, recast 2013) The EURODAC Regulation (2000, recast 2013) The Dublin Regulation II & III (2003, recast 2013) Denmark and the EU agreed in 2006 on a parallel agreement on the Dublin Regulation and the Eurodac database.

7 EU s Asylum Policy the Reality The current system doesn t live up to the EU s own commitments and ambitions, actually far from it! Problems: Very big differences between the number of applications the Member States receive Dublin criterion of first state entered is an arbitrary criteria for responsibility determination and can create a asylum lottery Different standards for examining asylum claims and non-compliance with EU obligations in some Member States -> no trust!! Race to the bottom: Member States implicitly make an effort to be an un-attractive destination for asylum seekers The system puts a disproportionate pressure on the reception capacity of the Member States that make up the EU s external boarders The system encourage irregular secondary movement within the Union The Dublin regulation is not consistent with the Treaty - requiring the principle of solidarity and fair sharing of responsibility when it comes to asylum policy!

8 Problems continued A conflict between the Northern and the Southern Member States is inherent in the way the Dublin regulation determines responsibility for asylum applications The EU has not been able to find a solution to the disfunctioning of the asylum systems and the very poor conditions for the asylum seekers in some of the most burdened EU Member States In stead the grave conditions have made the European Court of Human Rights prohibit or suspend of Dublin-transfers

9 Dublin has de-facto broken down! Rulings from the European Court of Human Rights A ruling by the European Court of Human Rights in 2011 prohibited the transfer of asylum seekers back to Greece due to inhumane conditions and deficiencies in the country s asylum procedure In a ruling in November 2014 the European Court of Human Rights pointed out that there are 'serious doubts' about the capacity of the reception system for asylum-seekers in Italy, with reports of over-crowding and poor conditions Moreover, due to severe criticism in a UNHCR report from 2014 of the workings of the asylum system and the reception conditions in Bulgaria the Danish government suspended in 2014 Dublin-transfers of asylum seekers to Bulgaria

10 Dias 10 Regional Distribution EU28 mid-2014 Percentage and Number of Refugees and Asylum Seekers Northern, Benelux and France, Southern, and the Central & Eastern European Countries (UNHCR data mid-2014) CEE; ; 3% Southern; ; 14% Benelux, France , 28% Northern ; ; 55% Centre for European Politics 10 March 2015 Røde Kors Conference

11 10 March 2015 Røde Kors Conference Dias 11

12 What can be done? A European distribution key based on: Member states reception and integration capacities, GDP, population size, territorial size, unemployment rate. Responsibility determination based on the asylum seekers connection to a member state in terms of family relations, linguistic, cultural and educational connections. This would enhance possibilities of integration, reduce the dependence on the receiving State, and discourage irregular movement within the Union. Free choice of member state to examine the application by the asylum seeker. It has been argued that this could be more cost efficient then the current system. However distrust and lacking solidarity is the current state of affairs!

13 Now to the Danish case!

14 The Danish Opt-out on Justice and Home Affairs 1. In 1993 DK got four opt-out s to the Maastricht treaty Defence, Union citizenship, the EURO and Justice and Home affairs 2. The Danish arrangement on Justice and Home Affairs was interpreted in such a way, that DK could only participate on an intergovernmental level. PROBLEM? Yes, when Lisbon was adopted in 2009 the remains of the J&H pillar i.e. police cooperation, was moved from pillar 3 to pillar 1 (Supra-national). This means that DK will be excluded from Europol when this area very soon will become supranational. 3. In Lisbon we were offered a so-called opt-in model which means that DK from case to case can decide what to cooperate on supranationally.

15 A Danish opt-in referendum without Asylum and immigration policy 4. DK then needs a referendum to say yes to this arrangement BUT a majority in Parliament wants to promise the voters that Asylum and immigration will NOT be part of it! My argument is that this is a paradox! DK will have no influence if Dublin were transformed and a more fair Asylum policy will be decided As we receive relatively many asylum seekers it would be big advantage for DK to work and even push for a change to the current system!

16 The EU s Asylum Policy and the Danish JHA opt-out Denmark is placed within the top 5 when it comes to applications received per 1000 inhabitants in 2014 Asylum Applications Received per 1000 Inhabitants in EU-28 in 2014 Sweden Hungary Malta Denmark Germany Luxembourg Belgium Cyprus Netherlands Bulgaria EU-total Italy France Greece Finland United Ireland Poland Latvia Slovenia Lithuania Spain Estonia Czech Croatia Romania Slovakia Portugal

17 Interestingly, there is high public support among the Danes for the creation of a more fair system 58% agree partly or completely to the statement that the EU member states should commit themselves to distributing refugees in a way based on solidarity (Source: Yougov and article in Mandag Morgen by Andreas Baumann).

18 Dias 18 Discussion 1. The Danes (or in particular the politicians) have a priori abandonned a constructive debate on DK s contribution to solving the refugee crisis in Europe by excluding this from the referendum 2. DK and Europe will have to start thinking differently about burden-sharing nothing suggests that the problem will go away! 3. The EU is ageing and will be in severe need of foreign workers in the future. Perhaps the two challenges should meet also in EU and national policy making? Centre for European Politics 10 March 2015 Røde Kors Conference

19 Center for Europæisk Politik Number of applicants total EU EU Dias 19

20 Number of applicants total EU Denmark Sweden Dias 20

21 Number of applicants per 1000 Inhabitants EU Denmark Sweden marts 2015 Dias 21

22 Country of origin EU Syria Eritrea Afghanistan Kosovo Serbia Pakistan Iraq Nigeria Russia Dias 22

23 Country of origin EU-28 (2014) 19% Syria Eritrea Afghanistan 44% 6% Kosovo Serbia Pakistan 6% Iraq Nigeria 6% Russia Other 5% 3% 3% 4% 4% Dias 23

24 Country of origin Denmark Syria Eritrea Stateless Somalia Russia Afghanistan Iran Morocco Iraq Dias 24

25 Country of origin Denmark (2014) 1% 1% 2% 2% 4% 5% 8% 13% 15% 49% Syria Eritrea Stateless Somalia Russia Afghanistan Iran Morocco Iraq Other Dias 25

26 EU and Denmark compared (2014) EU - total Denmark Other 44% Syria 19% Eritrea 6% Afghanistan 6% Morocco 1% Russia 4% Iran 2% Afghanistan 2% Iraq 1% Somalia 5% Other 13% Syria 49% Kosovo 6% Stateless 8% Russia 3% Nigeria 3% Iraq 4% Serbia 5% Pakistan 4% Eritrea 15% Dias 26

27 Percentage of positive first instance decisions on (non-eu) asylum applications (2013) Centre for European Politics Bulgaria (2.810) Malta (1.905) Romania (1.435) Netherlands (15.590) Italy (23.565) Sweden (45.005) Finland (3.185) Portugal (305) Denmark (6.965) Czech Republic (900) United Kingdom (22.355) Slovakia (190) EU-28 ( ) Lithuania (175) Austria (16.610) Belgium (21.390) Germany (76.165) Latvia (95) Poland (2895 Spain (2365) Cyprus (800) Estonia (55) Slovenia (195) Ireland (840) France (61.715) Croatia (185) Luxembourg (1.245) Hungary (4.540) Greece (13.080) 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Dias 27

28 Percentage of positive final decisions on (non-eu) asylum applications, 2013 Estonia (0) Bulgaria (40) Italy (95) Finland (230) Romania (1.550) Netherlands (1.895) United Kingdom (14.010) Denmark (1.660) Greece (3.900) Austria (6.860) Sweden (12.955) EU-28 ( ) Latvia (55) Germany (36.660) France (37.550) Lithuania (35) Ireland (580) Cyprus (960) Hungary (685) Czech Republic (415) Poland (1.050) Slovakia (115) Belgium (11.485) Spain (1.110) Luxembourg (670) Slovenia (60) Portugal (100) Malta (140) Croatia (95) 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Dias 28

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