From Schengen to Stockholm, a history of the CEAS
EU Member States are the primary institutions involved in formulating and setting asylum laws. Increasingly however, governments are taking the critical decisions on asylum policy at the European, rather than national level.
In mid-1980s five EU Member States (Germany, France, the Netherlands, Belgium and Luxembourg) expressed the desire to abolish the internal borders among them in order to facilitate the completion of the single market. They argued that the abolition of the borders necessitated the introduction of the so-called ‘compensatory measures’ that included strengthening external border controls and cooperation in the field of asylum and immigration. Thus, in 1985 these countries signed the Schengen Agreement that established common rules regarding visas, the right to asylum and checks at external borders. A further convention implementing the agreement was signed in 1990 and took effect in 1995. The Schengen Agreement was initially concluded outside the EU Treaty framework and was only incorporated into the EU acquis following the signing of the Treaty of Amsterdam in 1999.
Again outside the Treaty framework, a larger number of governments, including the United Kingdom (UK), were negotiating a Convention aimed at designating a single country as responsible for the handling of an asylum application. The goal of this Convention was to prevent the phenomenon of ‘asylum shopping’ whereby asylum seekers made multiple application claims in different Member States following their rejection in another state. The Dublin Convention was signed in 1990 but only entered into force in 1997. It is the precursor of the current ‘Dublin II’ Regulation.
EU Member States also launched a number of non-binding cooperation initiatives. These were the so-called ‘London Resolutions’ (1992) consisting, in fact, of two resolutions and one conclusion and deal with the issue of ‘safe third countries’. The Resolution on manifestly unfounded asylum claims introduced a common definition of such claims and established that an accelerated examination procedure may be applied in dealing with them. The Resolution on harmonised approaches to questions concerning host third countries specified criteria according to which a third country (outside the EU) may be designated as 'safe' and thus should be responsible for examining the applicant’s claim and/or for providing protection. The conclusion concerning countries in which there is generally no serious risk of persecution established a harmonised approach to such ‘safe countries of origin’. Applications from such countries were to be considered as ‘manifestly unfounded’ unless the asylum seeker could demonstrate that their country of origin is not safe in their particular case.
The first efforts to cooperate at the European level in the early 1990s can largely be attributed to the influx of refugees which a number of Member States, especially Germany and France, were facing following the conflicts on the Balkans and the collapse of the communist regimes in Eastern Europe.
The entry into force of the Treaty of Amsterdam allowed Member States to adopt legally binding instruments in asylum and immigration policies and gave the Commission a strong role in initiating legislation. The Finnish town of Tampere hosted a special EU Council summit dedicated to the creation of an Area of Freedom Security and Justice in 1999. Under this initiative and the ensuing Tampere Program (1999-2004), negotiations started on the creation of a Common European Asylum System (CEAS).
EU Member States wanted a common asylum system to deal with a number of specific problems stemming from the large differences in asylum systems and practices among them. ‘Asylum shopping’ has already been mentioned as a problem. Another aspect is that asylum seekers were perceived to gravitate towards countries with higher recognition rates and social benefits. To deal with these challenges, EU Member States decided to harmonise their asylum systems and reduce the differences between countries on the basis of binding legislation.
The first phase of the CEAS was completed in 2006 under the Hague Program (2004-2009). The system includes three directives and one regulation. These instruments are currently under review and the European Commission has proposed improvements and modifications in four “recast proposals” that should be agreed by 2012.
EU Members States are also moving forward with another phase of the “Freedom, Security and Justice” initiative. This new phase is called the Stockholm Programme and should be completed by 2014. This phase will see the scope of the CEAS broaden and may incorporate issues such as access to the EU, the resettlement and integration of refugees, external processing of asylum claims, regional protection programmes and responsibility sharing mechanisms between EU Member States. A new EU agency called the European Asylum Support Office based in Malta will also be established.
It should be noted that European legal hierarchy places EU directives above national laws. For this reason the development of new asylum directives at the EU level is of utmost importance to actors seeking to influence national laws and policies. EU Member States have therefore adapted their national laws to comply with the first phase of the CEAS. There are three exceptions to this rule. The Republic of Ireland and the United Kingdom negotiated an opt-out clause and are not bound by the CEAS, although they can decide to opt-in whenever they want. Denmark however, is not party to the CEAS.