Week 5 Case Study: EU Asylum Law

soft law

• any rules of conduct which have no legally binding force but which nevertheless may have practical effects

• recommendations, opinions, resolutions, declarations, action programs and plans, communications, guidelines and inter-institutional arrangements

• used for a variety of purposes

asylum

• refers to protection granted by a state to an individual against prosecution or harm done by another state, normally the individual’s home state

• currently the right to asylum is understood primarily as a human right

• a right belonging to the individual who might invoke against the state where asylum is sought, or against the pursuing state

• a right to seek and enjoy asylum has not been formulated in any of the human rights treaties

territorial asylum

refers to asylum accorded by a state to persons within its territory

diplomatic asylum

refers to asylum granted by a state in a foreign country, normally on the premises of an embassy or consulate

CEAS

• series of Directives and Regulations form the Common European Asylum System

• Dublin regulation, Qualification Directive, Asylum Procedures Directive, Reception Conditions Directive

• has two important roles

1. Protection= a full and inclusive application of the Geneva Convention. Must guarantee asylum seekers fundamental rights and ensure that decisions are taken in line with the refugee convention

2. Harmonization= it works towards a common european procedure and an uniform status -

• aim to prevent secondary movements of asylum applicants between MS

3 EU legislative acts

• regulations

• directives

• decisions

• recommendations and opinions are not binding

regulations

• a regulation shall have general application, it shall be binding in its entirety and directly applicable in all MS

• general application: regulates in an abstract manner an unknown number of situations

• direct applicability

• with entry into force, the regulation applies in the MS

• automatically becomes part of the national legal system

• national legislative organs must not transpose them

• it can be interpreted differently by states, so there is still some discretion

• national authorities must then apply the regulation and stop applying conflicting national law (principle of primacy)

principle of primacy

rule of conflict: if EU law is incompatible with national law, EU law always prevails d

direct applicability

ability of a piece of EU legislation to become part of a member state’s national law without the need for any domestic implementing legislation

direct effect

provisions of EU law may confer rights on an individual which the courts of MS are bound to recognize and enforce

directives

• a directive shall be binding, as to the result to be achieved, upon each MS to which it is addressed, but shall leave to the national authorities the choice of form and methods

• advantage: compromise (the EU wants unform outcomes across all member states, but also wants to respect national legal systems)

• disadvantage: implementation required (problem of delayed, inadequate or non-implementation)

• Commission prefers regulations wherever possible

• obligation to implement into national regulation must be a mandatory rule

• if failure to implement: direct effect if the deadline for implementation has passed, norm of self-executing character (formulated with sufficient precision so that rights can be derived) and no obligation of individuals

will the new pact on asylum and migration eliminate discretion?

• the changes ask for the asylum and migration directives to become regulations

to a certain extent, yes, it will get rid of dircretion, because regulations are directly applicable. however there is still some discretion, because of interpretation

Refugee protection and the layers of law

int. law - treaties, CIL, General Principles - Refugee Convention

EU Law - primary law, secondary law - Qualifications Directive

National law - constitutional law, administrative, criminal, etc. law - national implementation