The EMN was established via Council Decision 2008/381/EC of 14 May 2008 and is financially supported by the European Commission.

THE COMMON EUROPEAN ASYLUM SYSTEM A JUDICIAL REALITY OR PRACTICE?

Report of the International EMN Conference of April 24, 2013 The Hague, Clingendael Institute

On the 24th of April 2013 the Dutch National Contact Point of the European Migration Network (EMN) organised a conference on the Common European Asylum System (CEAS). The conference was hosted in the Clingendael Institute in The Hague.

www.emnnetherlands.nl

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INTRODUCTIONChair of the day was Monika Smit, Head of the research division Justice Administration, Legislation and Alien Affairs at the Research and Documentation Centre (WODC) of the Ministry of Security and Justice of the Netherlands.

“Has CEAS reached its goal?”

The Chair welcomes all, especially the ones who come from far to participate in the EMN conference on the CEAS. The aim of the CEAS is that it will ensure access to asylum for those who are in need of protection and through a common asylum procedure CEAS will deal with problems like asylum shopping. Monika Smit formulates several questions that will be the roadmap of today’s conference. Has CEAS led to agreements on legislative instruments which aimed at creating a level playing field and has it reached a higher degree of harmonisation? Has it reached its goals? If not, why and what does it need to succeed? Does it need more enforcement or is a third generation measures necessary? Two of the CEAS legislative instruments,

the Qualification Directive and the Reception Directive will be picked out, when trying to answer the intriguing central question whether the CEAS is a judicial reality or actual practice. This will be done by presenting national experiences from Sweden, Poland, Italy and the Netherlands. The Chair expresses her hope that besides the success stories, there also will be an honest account of inevitable implementation problems and challenges in order to come to solutions.

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COMMON EUROPEAN ASYLUM SYSTEEM The current status of the CEAS negotiations from a Dutch

perspective. The second phase of European harmonisation

in the area of asylum.

First speaker of the day is Harke Heida, Director of the Migration Policy Department of the Ministry of Security and Justice of the Netherlands.

Heida sets out to throw a small stone in the Brussels pond today as he will elaborate on the CEAS negotiations from a Dutch perspective. Although his presentation is critical, it comes from a loyal partner in the European integration process.

“For the Netherlands the CEAS negotiations have mainly been an effort in damage control. Further harmonisation could imply to end up with a less efficient system.”

For the Netherlands the CEAS negotiations have rather been an effort in damage control rather than in making significant steps towards further harmonisation. In the Netherlands there is a long tradition of protecting persons who seek international protection. Over the years a detailed system of processing applications with on the one hand the focus on swift decisions and on the other hand careful protection has been developed. Further harmonisation could imply for the Netherlands to end up with a less efficient system. Heida states that as far as the Qualification Directive and the Reception Conditions Directive are concerned, he was unable to come up with negative developments in this respect; however he was also unable to identify any improvements either as far as the Dutch national system is concerned.

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Having said this, the Netherlands has much to gain from further harmonisation. However the question is whether we are willing to give up some portion of our national system in order to gain further harmonisation. That is a question all Member States ask themselves.

The Netherlands has proven itself to be a loyal, but in the CEAS negotiations a somewhat reluctant partner. Where our national procedures are concerned, CEAS has not brought us any improvements. In the terms of further harmonisation, little has been reached; one concrete achievement has however been the establishment of EASO.

“Raising the common standard and not harmonisation at any price.”

When it comes to solidarity within EU, Heida does not believe there is a lack of political will in general, but believes that the negotiations have been entered with too little ambition. The aim should have been raising the common standard and not harmonisation at any price. The Commission has tried to overcome the shortcoming of the initial CEAS in the second phase. But we, the Member States, the Commission and European Parliament have not reached our goals of further harmonisation and substantially raising the standard of protection.

Heida continues to show the way forward. The focus used to be on harmonisation of legislation in a top-down approach. Heida proposes to throw that focus around and look at the work floor to establish common practices. A conference like this can help to start this process. Also, Heida invites the European Commission to visit Member States to gain a better understanding of the challenges of the work floor and to determine the best practices which may serve as example for raising the standard in other Member States. Renée Engelsman, Dutch EMN internee, asks how Heida sees these visits implemented in practice. Heida replies that this is very feasible by referring to other regular visits by other institutions. The Netherlands will be very happy to receive visits from the Commission or other institutions.

The keyword of the speech of Heida is solidarity, by stating that he believes there is no such thing as imposed solidarity. Solidarity among Member States can only exist if a Member State is willing to give or accept help and readjustment. Heida called upon the EMN to play a role in identifying the best practices. This will lead to further European integration and that will in the end stimulate solidarity among the Member States. Maria Hennessy, Senior Legal Officer at the European Council on Refugees and Exiles (ECRE), points out that for ECRE harmonisation per se is not the main goal, but what needs to be achieved is harmonisation based on a high standard of protection across Europe. For the first phase of instruments you can see significant changes in policy due to legislation and on European level as well. In the future implementation of this new legislation in compliance with human rights obligations is key. Another question Maria Hennessy raises is one for reflection. She asks whether these new standards in all the asylum legislation now achieve the obligation they set out to i.e. to eliminate ambiguity and vague provisions that have been there in the first phase of instruments. A question to reflect upon is whether these new standards have achieved that.

A shortened version of the speech of Harke Heida can be downloaded from the website of the EMN.

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The role of EASO in the harmonisation: ‘Increase

convergence and insure quality within the European

legislative framework.’

Next speaker is François Bienfait, Head of the Centre for Training, Quality and Expertise at the European Asylum Support Office (EASO) in Malta.

EASO has been established in 2010 to play a key role in the concrete development of the CEAS. The aim is to enhance practical cooperation on asylum matters, to help Member States to fulfil their European and International obligations to give protection to people in need, to support Member States under particular pressure and to contribute to the implementation of the CEAS. The CEAS starts top down with common legislation, but now that all legislative instruments of the second generation of the asylum package have been adopted, it is time to refocus our efforts on common practice and to contribute to the accomplishment of the CEAS by a bottom up approach.

“Same cases, same treatment”

The final objective of the EASO is that same cases of international protection applications receive the same treatment, the same safeguards, and receive the same outcome. At the same time, the experience on the ground can very much feed the legislation and the movement in a certain direction. It is an evidence based policy input.

The way in which the EASO works is as follows. For Member States to be well prepared when an influx of asylum seekers take place it is important to have an early warning and preparedness system. This could be fed from different sides: the Member States themselves who have obviously a lot of information, but also the Commission, EUROSTAT, Frontex, UNHCR, COI (European Country of Origin Network), and EASO developed tools such as the quality matrix and the training cockpit. All these different sources are interlinked and complete each other. All these sources must lead to EASO producing trend and risk analysis.

“Support is our mission”

The motto of EASO is “support is our mission”. This entails three types of support; permanent support, special support and emergency support. Permanent support means same support available for all Member States in a structural form. It includes training, COI, quality tools, practical cooperation workshops. EASO also engages in special support, this is in situations in between normal situations and emergency support situations. That means situations where a risk has been detected even if the situation cannot be qualified for the Emergency support mechanism yet. Then the emergency support, like for the moment with the Operating plan with Greece, where EASO deploys asylum support teams with specific capacity building tasks. The different supports interlink between themselves. We noticed that this was needed for countries that face special situations, e.g. due to

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high influx, examples: Sweden needed training of 300 new asylum officers due to very high increase of asylum applications in 2012. EASO helped Sweden in their plan on training officers for training this new staff. Italy needs also special support on various fields, as for instance training for judges, which one will start shortly. Preparatory meetings have already taken place. EASO’s contribution about the new asylum package will for instance be to update all material, in particular training material, that we already have, to alleviate Member States from this obligation and make them benefit from such ‘EU certified” qualitative tools”, Bienfait concludes.

European perspective on the Qualification and

Reception Directive.

A European perspective on the Qualification and Reception Directives is given by Christine Sidenius, Policy Advisor on Justice and Home Affairs for the Greens/EFA in the European Parliament, and Sarah Wolff, Senior Associate Research Fellow with the Clingendael European Studies Programme.

“CEAS: brave new world or just lipstick on a pig?”

First, Christine Sidenius takes the floor and raises the question: CEAS means a brave new world or just lipstick on a pig? When looking at introducing the European perspective on the Qualification and Reception Directives she considers the question of this conference about judicial reality or practice. The work of the Parliament is focused on the judicial form of the directives, “and very far from the practice”. However, she immediately reminds us that parliamentarians are faced very directly with the voters, and therefore have to deliver answers to the practical questions when dealing with asylum.

Recast method

Sidenius explains that, in the context of policy development, a new method was used: the ‘recast method’. This means that the European Commission amends only parts of the existing directives. Thus, the European Commission identified parts that should be revised and on that basis, the European Parliament, and then the European Council also, worked on amending the text. This method has left especially the European Parliament with some frustrations, because there were other areas of the different directives that they would have liked to work on. She knows that also amongst non-governmental organisations (NGO’s) there has been great frustration with the lack of ambition that is demonstrated by this method of developing the second generation of these instruments. She goes on to tell the audience that the Parliament asked the European Commission to identify the level of implementation of the different directives. The Procedures Directive was the Directive that had only four or five articles fully implemented in all Member States. Amending and revising existing directives that have not been fully implemented has been a rather challenging exercise for the European Parliament, says Sidenius.

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Next, she turns to the goals of the European Parliament when working on the directives and what they saw as achievements. They identified that the considerable variations in practices of the Member States is something that needs to be addressed, especially since there is a lot of new case law backing up that these variations are too wide. The overarching goal of the European Parliament, especially with regard to the Qualification Directive, but also for the other directives, was defining a common European asylum policy by 2012. Therefore, the European Parliament adopted a common position on the five instruments in 2010. The Qualification Directive was then the first directive discussed. The explanation for this is that the Qualification Directive is not only the one that is most fully implemented in the Member States, but it is also the least controversial one, according to Sidenius. The Reception Directive, on the other hand, is probably the directive that had the most challenging developments within the recast.

With regard to the Qualification Directive the aim was to come up with something that was ‘implementable’. Sidenius believes that this was achieved: the definitions are in place. However, she is interested to hear what Member States see that has come out of all these negotiations. This is a great example of the attitude we see throughout the conference: interest in how others see an issue from their perspective. Sidenius concludes with “I would like to end by saying that a European perspective on the Qualification Directive should be seen and linked with all the asylum directives”. Drawing from the experiences of the Green Group, she presents questions to ask when considering the achievements: whether the goal of approximation of rights has been achieved, whether the higher degree of protection standards was achieved, and whether the overall goal to move the Directive forward has been met. At the end of the day, Sidenius furthermore stresses that we have to look at the beneficiaries of the system. Considering all of this, she believes that the overall goals have been achieved.

Next, Sarah Wolff presents more of an academic European perspective on the Qualification and Reception Directive.

Her first remark is that, when you compare the asylum package to other areas of justice and home affairs, it is one of the more liberal areas. She stresses the importance of comparative analysis and the need for the establishment of best practices, not only for the implementation of the existing instruments, but also when thinking of instruments that are still missing.

“What are the gaps? What are the missing tools?”

Furthermore, Wolff believes that we should think beyond 2014: a new Parliament will come in then, and the Stockholm Program will be in need of a successor. She goes on to remind the audience of what the first generation of the Reception Directive was about. The variations of the Member States in the application of this Directive showed a few problems. For example, there were problems with issuing the documents stating the name and status of the asylum seeker. Also, there were a lot of issues with vulnerable groups and unaccompanied minors. Finally, applicants for subsidiary protection were not included in the first generation of the Directive. Trying to fill those gaps, there was the recast. According to Wolff, few improvements were made, amongst which on detention rules, access to free legal assistance and representation. The need of detention in special reception facilities can be named an improvement, but Wolff indicates that it remains debatable due to the fact that prison accommodation is still allowed, under the condition

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that the applicant is kept separate from criminals. Access to employment is interesting too, as this now has to be granted after nine months instead of twelve months after lodging the application. She remarks that there were proposals for a shorter period of six months though. In terms of special reception vulnerable persons and unaccompanied minors are taken into account, and mental healthcare is explicitly included. Furthermore, the Directive is now applicable in extraterritorial waters and transit centres. But, Wolff feels that there still are some gaps, for example when considering access to employment. This has definitely improved, but we still see different practices: some Member States grant access to employment after six months, others after three months. The NGO-community has also raised several problematic issues, such as the question whether the access to employment is effective in practice and the fact that asylum seekers can still be kept in prisons. As she is asked to conclude, Wolff turns to the European asylum policy beyond 2014. The need to focus

on implementation, which was already highlighted, is important indeed, but Wolff believes that we need to be a bit more proactive. When you look at the Stockholm Program and want to think beyond that, Wolff says that you should think of what the missing tools and gaps are. An issue has been, for example, that there have been problems in evaluating the changing instruments. On the Reception Directive specifically, the ECRE has recommended furthermore that the assessment of the quality of detention centres should be integrated in the early warning mechanism that was mentioned earlier. Wolff is therefore interested what EASO has to say on this and whether it could maybe cooperate with academics or NGO’s. Another question that we could think of is that of gender: are men and women truly equal in EU asylum policies? “Maybe not,” Wolff says. She concludes by stating that she thinks that the whole methodology of Stockholm should be revised in general and emphasizes the role the European Parliament might play in this.

After these presentations, there is room for questions and/or remarks on these two presentations. Maria Hennessy (ECRE) congratulates the Parliament on the new standards set in the Qualification Directive. She comments that it is important to keep in mind the jurisprudential developments in this field including rulings of the Court of Justice of the EU and the European Court of Human Rights. Member States must also bear in mind the provisions of the Charter of Fundamental Rights when applying these new standards to ensure compliance with fundamental rights. It is key that decision makers are aware and apply the Court rulings in this field.

Another question from Renger Visser, Director Asylum of the Dutch Immigration and Naturalisation Service (IND), is directed to Christine Sidenius and concerns the gap between legislation and practice. The new standards have to be implemented in a period of economic crisis. Has Parliament discussed how to implement these standards when the original ones are not even implemented by some Member States? Sidenius answers that this definitely has been a topic of discussion, and that costs have been an often-repeated argument from the side of the European Council against certain improvements, especially in the case of provisions of the Reception Directive.

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NATIONAL EXPERIENCES: QUALIFICATION DIRECTIVE The Swedish experience

Presentation Sweden by Bernd Parusel, Expert for the Swedish National Contact Point of the EMN at the Swedish Migration Board, and Maria Lindgren Saltanova, Deputy Director at the Division for Migration and Asylum of the Ministry of Justice of Sweden.

The first speaker on the Qualification Directive is Bernd Parusel from EMN Sweden. He starts by stating that Sweden is one of the major destinations of asylum seekers in Europe. Sweden has seen a very strong influx in 2012. When we look at the harmonisation concerning the Qualification Directive in Sweden we see that the granting of protection in Sweden is fully harmonised in accordance with the EU Qualification Directive, but there are also complementary national bases for protection. The granting of refugee status in accordance with the Geneva Convention and the granting of subsidiary protection are harmonised forms of protection in Sweden. As a complement to the granting of subsidiary protection in accordance with the Qualification Directive, there are also national forms of subsidiary/humanitarian protection covering grounds of other severe conflicts and environmental disasters. In 2012, 95.5 % of all residence permits granted for subsidiary protection was granted on grounds covered by the Qualification Directive. Only 4.5 % was granted on the basis of complementary national provisions. In exceptional cases, a residence permit can also be granted on grounds of exceptionally distressing circumstances (non-harmonised). This applies for instance to people who suffer from deceases or unaccompanied minors who cannot return. Resettlement, which can be seen as a complement to the asylum system, is undertaken on the basis of national practice, in cooperation with the UNHCR.

Parusel points out that the number of asylum seekers who have been granted residence in Sweden has increased. During the last six years the granting of protection has increasingly been on the basis of the Geneva Convention and under subsidiary protection. The number of times national forms of protection have been granted has decreased.

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Parusel tried to answer the central question of the day and referred to Eurostat statistics on asylum decisions that show that in the last years the use of protection on the basis of the Geneva Convention has tended to increase all over Europe. Looking into decisions on asylum applications from certain countries of origin, for example Afghanistan, a clear tendency towards an approximation of national decision-making can be observed. At the same time, however, the Eurostat statistics show that there is still considerable variation between national practices.

Next is Maria Lindgren Saltanova from the Ministry of Justice of Sweden. Lindgren Saltanova wants to underline that the CEAS is an objective for Sweden and strongly supports the idea of it. According to Lindgren Saltanova, François Bienfait puts it well by saying same cases same treatment. Statistics show that we are not there yet. Sweden believes that the Qualification Directive and the other asylum directives are important steps towards harmonisation. You cannot do this in 10 years, but obviously you have to start somewhere.

“Raising the standards”

Lindgren Saltanova wants to react on Harke Heida’s statement. For Sweden in the negotiation phase of the Qualification Directive it was not only about damage control but also to make sure that standards were raised. For instance approximation of rights between those granted subsidiary protection and refugees. The Directive is meant to take a step towards strengthening international protection in the European Union (EU) and reduces differences between Member States. Further it increased the focus on the criteria for identifying persons in need of protection in the Member States and on benefits for persons granted international protection in the EU.

Lindgren Saltanova goes on to elaborate on some of the main changes that the Directive has made in the Swedish asylum system. First of all it introduced the “status” concept, refugee status and subsidiary protection status in the Swedish Alien’s Act. The central concept in the Swedish asylum legislation has been the residence permit, not the status. Previously it was possible to separately apply for a refugee declaration, but it was not automatically granted as is the case today if you are a refugee. Secondly two categories of subsidiary protection were established; ‘subsidiary protection’ according to the Directive and ‘persons otherwise in need of protection’ (already existing national protection category).

Lindgren Saltanova concludes her presentation by answering the central question: “The Qualification Directive is an important step towards harmonisation, being one of the corner stones of the CEAS. We need to work a lot more to achieve a CEAS. Implementation of current legislation is key. Practice among Member States – including eligibility criteria for international protection – needs to be further harmonised. We need to analyse our own methods and choices in practice.”

Italy wants to share two impressions. Nadan Petrovic, international official with IOM, states that he sees much similarity with Italy. The difference is that granting humanitarian protection is a very high portion of the asylum seekers in Italy. Italy was very generous in granting recognition to refugees last year during Arab Spring. Second is that concerning procedures Petrovic says, same cases, same treatment. He has doubts on reception and certainty that it is impossible to fully integrate within Europe. “We come from different histories and backgrounds”, says Petrovic.

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Bjorn Decoster, Dutch Migration Policy department, agrees with Sweden. First of all the Netherlands were very ambitious with the Qualification Directive concerning benefits. The Netherlands wanted that refugees will get the same benefits under subsidiary protection as under refugee status. That has not been achieved yet. “Although some improvements have been made, we could have been more ambitious. Our ambition should be to now put in practice the implementation. We should speak with Member States to give asylum for instance to Syrian refugees. Qualification of these refugees shouldn’t be a point of discussion.”

The Polish experience

Presentation Poland by Joanna Sosnowska, National Network Coordinator within the Polish National Contact Point of EMN at the Migration Policy Department of the Ministry of Interior of Poland.

Poland’s history in granting international protection is very short. This is different from other states present today. That is why Poland when confronted with the first influx of refugees started to cooperate with UNHCR. Since then Poland has made great efforts to facilitate refugees by stating national legislation in accordance with international law. The will of Polish government from the nineties on was presented during the Balkan wars where temporary protection was offered. During the negotiations and the procedures prior to the accession of Poland to the EU in May 2004 new acts to secure the position of foreigners in Poland were concluded. In the Act of 13 June 2003 on granting protection to asylum seekers within the territory of Poland amendments introduced changes to national law. First of all the subsidiary protection was introduced. Also the concepts of relocation and resettlement were introduced. Further Poland has strengthened the principle of non-refoulement and increased aid for foreigners residing in appointed centres for foreigners.

“Not only harmonise legislation, but also harmonise practice”

In general terms Poland has seen an increase of asylum applications. Lately, Poland has noticed an important change in the diversity of nationalities applying. While asylum seekers still predominantly come from Russia (mainly Northern Caucasus region), Georgia and Belarus because of the political situation in those countries and the existence of the illegal migration channels through Belarus, Afghanistan and Syria also emerged as important countries of origin. Sosnowska reminds the audience that due to geographical matters the number of foreigners applying for international protection differs between the EU countries. The CEAS is very much needed, not only to harmonise legislation, but also to harmonise practice. EASO could play a role in the harmonisation of practice. Furthermore there is tendency to give more international protection instead of national protection.

Interesting was that Sosnowska mentioned that missions are organised to countries of origin. “We have to be careful because Member States have a lot of information and so does EASO. We have to be

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aware that we do not duplicate work. The costs of harmonisation are high and if we could do things together, it would be more effective. We should coordinate all the initiatives. Maybe this would be a role for EASO to play”, concludes Sosnowska.

The Italian representative Nadan Petrovic states that Italy is quite in the middle between Sweden and Poland. Petrovic sees a similarity in increase in requests. Also interesting is that Poland has experience with temporary protection, which is also the case in Italy. Differences are the different nationalities and the fact that Poland has quite homogenous groups in comparison to Italy. “In general what impressed me positively is that Poland has a clear agenda on what the direction should be.” Italy is pleased and interested to see how Member States are doing their best towards a CEAS.

Panel discussion and questions from the audience

With Christine Sidenius (EP), François Bienfait (EASO) and Maria Hennessy (ECRE).

François Bienfait starts the discussion by clarifying what the role of EASO is and should be. In the future EASO will probably start developing some kind of policy guidance. But always with the limitation that it has no competence on the individual asylum cases. Another important tool for harmonisation is the common training system. It was for instance seen in Finland that since they started to train their staff with the EASO training module on inclusion, the proportion of Refugees versus beneficiaries of Subsidiary protection started to increase significantly, producing a situation

much more in line with the prescriptions of the International and European Refugee Law. Another issue mentioned today was a new role for EASO to gather information about countries of origin. There are not enough resources for EASO to gather itself all information but the

dynamic is to coordinate the work produced by the Member States, UNHCR, NGOs etc. and organise the content of this information on the COI portal. Also to set rules on how to produce and to use this information, and how to build COI experts networks to reach a multiplier effect.

Krystyna Komorniak, Senior Specialist in the Department for Refugee Proceedings in the Polish Office for Foreigners, states that Poland wanted to have a fact finding mission to Afghanistan. But security was the reason to stop it. Still the Member States should have a platform to investigate the possibility to combine efforts and results. In practice we already use each other’s information so it is already done and proven to be very useful. Alexander Sorel, employee of the Permanent Representation of the Netherlands, was present during most of the negotiations of the Qualification Directive. He states that Sweden and the Netherlands did fully agree during the negotiations, but the draft changed because other countries did not agree on certain terms. The aim of the second phase of the CEAS was to have same results in same cases. The Stockholm Program ends in 2015. What do you think should happen in 2015? Should we step over the fatigue of negotiations, is that noticeable in Brussels?

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Christina Sidenius responds confirming the policy fatigue, but when you look at what parliament is saying on the next step, you see a tendency towards wishful thinking. An idea is to in the future have common application centres. There is still interest for new ideas, but now more humbled by the fact that current legislation has not been implemented yet. The overall idea is that first this relatively new legislation should be implemented correctly before starting a new phase.

“Negotiation fatigue”

Monika Smit gives the floor to Maria Hennessy from ECRE and asks her how she thinks the Member States have implemented the Qualification Directive so far. Hennessy first wants to respond to Alexander Sorel. Maria Hennessy noted that earlier in the day it was remarked that we could have

been more ambitious in this second phase so I wonder what did happen during the negotiations. In a way it feels like a missed opportunity because looking at the all of the Directives together, more could have been achieved and the recasts now have only led to including obligations from case law of the Courts that Member States were bound to anyhow. It is important that Member States continue to adhere to new judgments in this field. ECRE is now starting a project on evaluating the practice surrounding two legal concepts in the Qualification Directive – the actors of protection provision and the internal protection alternative provision. ECRE will be contact with relevant stakeholders in the countries concerned to gather good practices and information.

Smit states that implementation has already begun. It is not now just starting. She asks the panel if they are satisfied with Sweden and Poland? According to Hennessy, it is good to see that there is not a great reluctance to use the new statuses and rely jus ton national statuses. Also important is to state the obvious, that there is an obligation for Member States to implement the directive. Solidarity should also extend to the refugees concerned and not just between Member States.

Andro Stelk (IND) asks the panel’s position on repatriation of asylum seekers who have not been granted status. “Is that a responsibility for the Member States or does one think EASO has a responsibility?” François Bienfait states that referring to EASO Regulation repatriation is obviously not at the core of the tasks to act on. Frontex, another EU agency, is directly involved in this issue. However, there is certainly not a clear and definitive distinction, it is not always so easy to determine where the Asylum field starts and where it ends. And there is certainly the need for a good collaboration between EU Agencies such as Frontex, EASO and the FRA. Christine Sidenius does not think it is a task EASO should have, since already today, according to the newly revised FRONTEX mandate, coordination and facilitation of return operations by Member states, is a task for FRONTEX.

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NATIONAL EXPERIENCES: RECEPTION DIRECTIVE The Italian experience

Presentation Italy by José Oropeza, International Official with IOM, Director of the Coordinating Office for the Mediterranean countries and Chief of Mission in Italy and Malta. IOM Representative to the Holy See, and Nadan Petrovic International Official with IOM Italy, Senior specialist for integration of asylum seekers, refugees and migrants at IOM

After a coffee and tea break, it is time to continue with the national experiences of Italy and the Netherlands with a focus on the Reception Directive. José Oropeza, representative of the International Migration Organisation (IOM), gives the first presentation on the experiences of Italy. He shortly explains the function of the IOM, and then turns to François Bienfait to congratulate EASO on introducing early warning, and links this to reception facilities.

“Should and could we have known that migrants were coming in huge numbers?”

Considering the particularities of Italy, he says, this region has seen enormous flows of migrants. He wonders whether we should and could have known that migrants were coming in such huge numbers, for example during the conflict in Libya. He continues by remarking that the only option these people have when arriving in Italy is to ask for asylum. Due to the different waves of huge influxes, Italy sees itself confronted with a collapse of reception facilities when these are extremely high. In terms of numbers, we should think of 60.000 migrants arriving in Italy in three months. The costs of reception facilities are therefore high. “But, this region will continue to face important movements of people. People flee from persecution, people flee from poverty, and people flee from national disaster.” Regulating migration and asylum therefore is a necessity according to Oropeza. That is why IOM works with the Italian government, but also with Save the Children, UNHCR and the Italian Red Cross in order to provide adequate reception of migrants to Italy. In this project, they screen for vulnerable people in reception centres, such as victims of human trafficking. He concludes his presentation by considering that harmonisation of standards is difficult due to the severe economic crisis. However, he does reaffirm the need to standardize procedures, policies and reception.

Nadan Petrovic, who works as an international official for IOM, takes the floor to present the application of the Reception Directive in Italy and influence of the formation of CEAS on the Italian policy regarding reception. As for the latter, he says that Italian policy has definitely been influenced, in a positive way. He mentions for example the withdrawal of the geographical reservation of Italy to the 1951 Geneva Convention, but also the application of the Dublin Convention that started in

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1997, and the Tampere process that Italy took very seriously by creating a reception system. Petrovic explains that it is a system of open reception centres, managed by the municipalities, providing a full range of services. These services can include courses in Italian, cultural orientation, social support, etcetera. Later, closed centres for asylum seekers were enacted, which were meant to provide reception facilities to asylum seekers that arrived illegally in Italy. This was the reception system before the Reception Directive was ratified in 2005. Italy applied the Directive entirely through the national system of open centres managed by municipalities. In this sense, the Directive was nothing new really, as Italy provided quite a high level of facilities already in these centres. However, some new elements were introduced. Petrovic considers the following three to be very important: specific

projects for vulnerable groups of migrants, the possibility to access employment after six months, and the fact that from that moment on reception of asylum seekers in Italy is mandatory. After the Reception Directive, Italy created another system of reception centres, so-called CARA’s. Thus, there are now two systems for reception in Italy. They more or less have the same level of services, although the new CARA’s are much bigger in order to provide the reception facilities that the Directive requires. Also, it should be noted that even another directive, which was not related to reception, was used to improve the Italian system.

“The process of CEAS has been extremely positive.”

Petrovic concludes by emphasizing that Oropeza and himself are no government officials, and therefore cannot say much about the governmental evaluation of CEAS. However, in his view, the process of CEAS has been extremely positive. Even though the Italian reception services in some centres already met the standard of the Reception Directive to a large extent, Italy used - “almost desperately” - the European directives to justify new legislative measures for asylum seekers and refugees; the European directives are used to pass national laws.

In their reaction on the presentations of the national experiences of Italy, the Swedish representatives acknowledge that it can, at times, be hard to cope with a great influx of asylum seekers. They use the example of Syrian asylum seekers in Sweden last year. Bernd Parusel explains that it was hard to ensure that everyone in need of it had housing in that situation and that they improvised to cope with it. In relation to that Parusel tells the audience that one element of the reception system in Sweden is that everyone who is in need of it is provided with accommodation, but that asylum seekers can also arrange this themselves. This results in approximately 30% of the asylum seekers arranging for their own accommodation and stay with relatives who already live in Sweden, for example, even when they do not get additional money to pay the rent. Furthermore, Parusel remarks that the geographical location of a country can play a role as far as the number of asylum applicants is concerned, but it is interesting that Sweden is receiving many asylum applications while its geographical location does not seem to justify that.

The Polish representatives find it hard to compare the situation of Poland as more of a transit country to that of Italy with its enormous influx. Joanna Sosnowska wonders about the early warning system: how can we prepare, besides having the knowledge that people from a certain area or country might flee to Europe?

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The Dutch experience

Presentation the Netherlands by André Baas, Strategic Advisor on international affairs within the Dutch reception organisation COA (general reception issues and resettlement, working under the responsibility of the Dutch Ministry of Security and Justice), and Janine Sterkman, Senior Policy Officer at the Dutch Ministry of Security and Justice of the Netherlands

Turning to the Dutch experiences with the Reception Directive André Baas presents the reception system in the Netherlands.

“Take two steps back”

Baas has visited different EU Member States and sees a great diversity in reception facilities. On this basis “you see two basic things”. When speaking with the people working in practice about the implementation of the Directive, they will usually say that implementation is complicated due to national circumstances. Secondly, the Reception Directive “tells you what you should do”, but it does not say how that should be done. These are big challenges according to Baas. However, he does not believe that it would help to recast en negotiate the Directive again. He thinks it would be best if we would “take two steps back”: talk to the people working with the Directive in practice and identify best practices, before going back to the drawing table.

Giving these remarks to the audience as food for thought, Baas continues with a background on the rather unique reception system in the Netherlands. It is unique due to the fact that the system is 100% centralized and is supervised by one organisation: COA. All persons who are still in the formal asylum procedure are entitled to reception facilities. He explains that the use of these facilities is a right, and not an obligation, but that in daily reality 99,9% of the asylum seekers use the centralized system. When relating the reception facilities to the asylum system, Baas mentions that the idea is that the asylum seeker moves through the reception system depending on the course of his or her asylum procedure. In order to make this

work, cooperation is very important. Therefore, different organisations are working together in the ‘asylum-chain’, such as COA, IOM, the Dutch Immigration and Naturalisation Service (IND), the Legal Aid Board (Raad voor de Rechtsbijstand), the Dutch Council for Refugees (Vluchtelingenwerk) and the police. This shows that NGO’s are also involved in the Dutch asylum and reception system, as it is “about the best for the asylum seeker”. When looking at the level of reception facilities, the other cooperation-partners around COA include even more organisations, which are, for instance, specialized in activities for children, education, etc. Using PowerPoint sheets with data, Baas shows the audience situation in the Netherlands now. Ten years back, the Dutch reception centres had some 85.000 residents. At that time, we were wondering how we were going to manage, says Baas. However, due to legislative changes and amnesties, the numbers went down. The current number of residents is 14.800. When speaking about the nationalities that are most present in the Dutch system, the top-5 (2008-2012) consists of Afghanistan, Iraq, Somalia, Iran, and Armenia. He notes that these

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are quite comparable to Sweden, but very different from, for example, the nationalities of asylum seekers in Belgium. Baas believes that it is very interesting to compare these kinds of data and look for more cooperation.

Upon the Dutch experiences with the Reception Directive is further elaborated by Janine Sterkman, Senior Policy Officer at the Dutch Ministry of Security and Justice. She starts of by stating that the reception facilities in the Netherlands are of a high standard and all centralized. Due to that high standard, the Netherlands could support the aim of the original proposal of the European Commission, which was “to make the provisions of the current Directive more binding, to state the provisions at a higher level and to harmonise those provisions at that higher level”. She says that this was in the interest of the asylum seeker, but also prevents asylum shopping. Using the example of access to the labour market, she explains this further. The Netherlands welcomed the original proposal of the European Commission to grant access to the labour market for asylum seekers six

months after the application for asylum, because the Netherlands already granted access after six months. However, this proposal turned out to be quite controversial, because many Member States feared a greater influx of asylum seekers. The revised proposal therefore states that an asylum seeker can be granted access to the labour market nine months after the application for asylum. Also, the Member States can decide on conditions in accordance with national law, provided that there is effective access to the labour market. Although the Netherlands supports and uses the time limit of six months, it has stressed that Member States must have flexibility in stating conditions concerning access to the labour market. Sterkman mentions the importance of a good quality of

life for the asylum seeker, which includes daily activities, but this can also concern other activities than labour, like f.i. voluntary work activities related to integration or return. In the Netherlands an asylum seeker can, according to the national conditions, work for 24 weeks in a year. This time limit has been set to prevent a right to unemployment benefits for the asylum seeker. Turning to the question whether the Reception Directive has served its purpose, Sterkman sees that the Directive resulted in many positive changes, such as the expansion of the scope of the Directive to subsidiary protection and the fact that access to the labour market must be granted nine months after application for asylum (instead of a year) now. Furthermore, the Netherlands was in favour of the reference to the standard of living for nationals with social benefits, when deciding on the amount of material reception conditions, but the revised proposal says that Member States may grant less favourable treatment due to objections of many Member States. Sterkman continues with some more positive changes that are a result of the Reception Directive, including extended provisions concerning detention and more attention for vulnerable groups. Even though the Reception Directive has resulted in positive changes, the negotiations were quite difficult and a new, revised proposal was necessary. For the Netherlands this meant that they did not have to implement big changes, as the level was good already. Due to the limited amount of time left for her presentation, Sterkman decides to skip to the question “what should be changed in the future?”

When working on the implementation of the Reception Directive, Sterkman thinks that it is important to “go for practical cooperation and exchange of best practices”, that implementation

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is supervised, and that Member States truly exchange their best practices to prevent a Europe at different velocities. Unfortunately, there is no time for Sterkman to talk about the reception of minors and detention, but for more information one can refer to her Powerpoint sheets.

“Go for practical cooperation and exchange of best practices”

Monika Smit invites the representatives of Italy, Poland and Sweden to react on the presentations on the system in the Netherlands.

The Swedish representatives comment on the access to the labour market, which is granted to asylum seekers in Sweden from day one onward. Maria Lindgren Saltanova explains that there are some conditions though: you have to cooperate to establish your identity and it must not be a Dublin-case or a manifestly unfounded application. This has been the system since 2010 and Sweden did not experience any negative effects so far. “We did not see that there is a connection between the possibility to work and the influx of asylum seekers”, Lindgren Saltanova says. She also mentions that when the asylum application is rejected, the asylum seeker of course does no longer have a right to work if he or she does not cooperate to leave Sweden. However, he or she can apply for an ordinary work permit in Sweden if he or she manages to find a job and applies within two weeks after the final rejection.

The Polish representatives also consider the access to the labour market and explain that access is granted on the day that the (positive) decision on the asylum application is issued. When no decision has been issued within six months, the asylum seeker is granted access to the labour market when he/she requests so. How the right is implemented in practice, depends on the Polish labour market and characteristics of the local labour market. Besides the benefits that asylum seekers receive, they may always work for the reception centre. Furthermore, they get help from social workers to get a job. She also remarks that the benefits that asylum seekers receive from the government are not very high, which results in asylum seekers wanting to earn money to support their stay in Poland. She concludes by mentioning that not all reception centres are governed directly by government, but that some are outsourced. Using general procurement Poland tries to better the conditions in these centres.

“Investing in migrants will pay off”

On behalf of the Italian representatives, Oropeza emphasizes the need for strategic thinking and says that investing in migrants will pay off. He uses the example of Germany, where Turkish people returned to Turkey and invested there, which opened up business opportunities for Germany.

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Panel discussion and questions from the audience

With François Bienfait (EASO), Christine Sidenius (EP) and Sarah Wolff (Clingendael)

Wolff kicks off the discussion by stating that she sees a socialization of EU asylum norms beyond the more formal negotiations; what she calls “some sort of positive, normative entrapment”. Going back to compliance with directives, Wolff thinks that it would be important - within this positive evolution - to identify what the veto points and veto players are in the Member States that might somehow block the implementation of the directives. She believes that it will be interesting to see what lessons we can draw from this socialization of EU asylum policy and what best practices can be shared. She furthermore emphasizes the importance of looking at asylum and migration from a more global perspective and that lessons drawn at the EU level might be shared with, for instance, countries of origin.

Sidenius remarks that the negotiations on the Reception Directive have been the most controversial ones out of all the negotiations. However, the rather positive experiences in the different Member States are encouraging for the implementation of the second generation of the Directive.

Bienfait thought it was very interesting that the conditions of reception in Sweden and the Netherlands are of a high level, even though there are differences in the implementation. He mentions the difference in when access to the labour market is granted as an example. Turning to what EASO can do in the context of the Reception Directive, he says that they are open to suggestions, all being question of priorities, due to limited resources, and can imagine that mapping studies or connecting and sharing best practices might certainly be helpful.

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CONCLUSION AND CLOSING REMARKS“There is no way back, we have to move forward”

Monika Smit wraps up and reminds the audience of the central question of the conference: the Common European Asylum System, a judicial reality or practice? Smit is unable to answer this question tough. Drawing from the different presentations, questions and discussions she thinks “a lot has been achieved, but there is still a lot to be done”. She summarizes that now is the time for implementation and that there is hope, even against the backdrop of the current economic crisis. “There is no way back, we have to move forward,” she says. In conclusion, she stresses the need for cooperation, sharing information and best practices, and looking at the daily practice.

The PowerPoint presentations can be downloaded from the website of the EMN.

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CONSIDERATIONBy Dr Flora Goudappel, Associate professor European Union law, Jean Monnet chair in European Trade Law in the Overseas Territories, Erasmus School of Law, Rotterdam At the EMN conference, both the differences and similarities in application of the Qualification Directive and the Reception Directive were discussed. From an academic point of view, it all seems to be crystal clear: who has to do what when under which circumstances. When applied in practice within the national legal systems of the Netherlands, Sweden, Italy and Poland, the national constraints and choices appear to differ widely. Yet, after questions and answers, it was clear that all systems operate from European Union bases and need each other’s support.The European Union influence on practices in the national systems has been very large. The systems already in operation before CEAS had to adapt because of the Qualification Directive and the Reception Directive. A relatively new asylum system in a country like Poland, on the other hand, has benefited largely from the experience of other Member States in CEAS. While the influx and the origin of influx differs per country and the solutions correspond these differences, a CEAS system is necessary for the proper functioning of both the national systems and the European system.The Qualification Directive leaves room for interpretation for the different statuses, especially the status attached to temporary protection and subsidiary protection may differ. Still unclear is whether this is a good or a bad development: is more harmonisation necessary or not? Such differences do not seem to play a part for the application of the Reception Directive. Most problems occur in circumstances of what can be labeled a ‘semi mass influx’, i.e. when many asylum seekers apply for asylum in a short period of time or all flee from the same country. Examples are the large number of Syrians applying for asylum in Sweden last year and the influx of Tunisians in Italy during the Arab Spring. Are the requirements laid down in the Reception Directive sufficient to deal with situations like these?Overall, the question remains whether the in depth discussion of the two directives leads to the conclusion that CEAS needs to be re-negotiated as a package deal or not. Practice shows that differences in application need to be possible so that Member States can adapt – under minimum rules – to sudden needs, and also have an option to interpret the European Union standards within their own political reality.

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THE EMN NATIONAL CONTACT POINT OF THE NETHERLANDS

The EMN National Contact Point of the Netherlands is located at the Immigration and Naturalisation Service Information and Analysis Centre (INDIAC). This unit is part of the Dutch Immigration and Naturalisation Service (IND) of the Ministry of Security and Justice. Information: www.ind.nl

Address

Dr. Colijnlaan 341 Postbus 58002280 HV Rijswijk0031 (0)70-779 4879/5431EMN@ind.minvenj.nl

Internet

Official website European Migration Network: www.emn.europa.eu Website EMN National Contact Point of the Netherlands: www.emnnetherlands.nl