Granting the Right to Asylum through the Common European Asylum System
About the project:
This PhD Project deals with the implementation of the largely harmonized law in the Common European Asylum System (CEAS) from an EU Law perspective – working title: “Administration in the Common European Asylum System. Study with special regard to EASO”.
The project starts from the observation that the substantive law in the CEAS is already to a large extent harmonized (and is being harmonized further), but that the implementation is very heterogeneous and overall deficient. This not only hampers the functioning of the CEAS but also negatively affects individuals who apply for International Protection. In order to “establish […] a common asylum area taking into account the humanitarian tradition and respect of international obligations of the Union and the effectiveness of a harmonized procedure” (The Hague Programme, 2005) harmonization of substantive law is not sufficient – in addition, a working administration is needed. Obviously, this has been realized by the responsible actors as well.
The first part of the study shortly presents the substantive law of the CEAS i.e. the law to be implemented by the European Administration. The substantive law is composed of the law on determination of the responsible Member State (in particular Dublin-III-Regulation) and the law on International Protection (in particular Qualification Directive). This overview is not only necessary in order to understand the next part of the study, but indispensable as administrative tools depend on the law which is to be implemented.
In its second part, the main part, the study explores EU instruments and measures concerning implementation in the CEAS.
The research focuses on how these measures (i) affect the structure of administrative cooperation –which is up to now mainly horizontal i.e. cooperation between Member States – and (ii) affect the individual applying for International Protection. The study is guided by the sub-question which tendencies can be seen in the development of the European Asylum Administration and how these can be understood. With regard to the European Asylum Support Office (EASO), the sub-question concerns the position of the EU agency in the European administration system – in particular whether the agency can be seen as nucleus of an EU Executive or whether it plays a subordinate role for the functioning of the CEAS. Regarding the position of the individual, the main sub-question is whether fundamental, human and refugee rights standards are respected – in particular procedural rights.
The EU measures and instruments concerning implementation in the CEAS can be ordered depending on which element of the European Asylum Administration is influenced. First, EU law modifies the administrative act as main type of action of the national administrations (transnational administrative act). Second, the Union influences administrative organization and procedure: It shapes the organization of horizontal administrative cooperation as well as of the national administrations as such, and the administrative asylum procedure. Third, the relevant facts, i.e. the information on the basis of which the administration decides on an application for asylum, is increasingly and in an increasingly binding way determined by the Union (mainly through the agency EASO); the same is true for the administrative task to interpret the relevant substantive law. Fourth, the Union provides operational support: the agency EASO supports Member States which have a weak asylum administration (here, operational support by EASO in the Greek Hotspots will serve as case study). De lege ferenda, the question arises whether operational activity by an agency could fully or partly replace national administrations.
The third and last part of the study aims at placing the results in context of larger debates on the development of the Union – in particular the debates on solidarity in the Union and territoriality of the Union. Finally, the question of the practical and legal possibility of an EU Executive in the CEAS arises.
The study presents and analyzes the implementation of the asylum law in the CEAS. On this basis, current reform proposals of academia and practice can be assessed. As the problem of implementation of harmonized law is not confined to the CEAS, the results of the study are further useful for other areas of EU law. Since special regard is paid to EASO, the results also contribute to legal research on EU agencies in the EU administrative system.