Legally and politically important
Not cleared from scrutiny; further information requested; opt-in decision recommended for debate on the floor of the House together with Council document 8715/16: a proposal for a Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third country national or a stateless person (recast) and Council document 8765/16: a proposal for a Regulation on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of [Regulation (EU) No. 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third country national or a stateless person], for identifying an illegally staying third country national or stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes (recast) — both decisions reported on 15 June 2016; drawn to the attention of the Home Affairs Committee
Proposal for a Regulation on the European Union Agency for Asylum and repealing Regulation (EU) No. 439/2010
Article 78(1) and (2) TFEU, ordinary legislative procedure, QMV
(37749), 8742/16 + COM(16) 271
1.1The EU asylum system is in disarray. The migration and refugee crisis has exposed significant disparities in the way that Member States apply EU asylum laws and in the outcomes they produce. The Commission considers that these disparities undermine trust in the Common European Asylum System—a body of EU laws establishing minimum standards for determining who qualifies for international protection, the procedures applicable to asylum claims, and how asylum seekers are to be treated while their claims are being examined—and increase the risk of secondary movements within the Schengen free movement area. These laws are underpinned by procedural rules determining the Member State responsible for examining an application for international protection and the Eurodac asylum database which together constitute the Dublin system. Although Greece, as the first Member State of entry for many asylum seekers, would normally bear responsibility for examining their asylum claims under the Dublin rules, the return of asylum seekers to Greece from elsewhere in the EU has been suspended since 2011 because of systemic deficiencies in its asylum system.
1.2The European Asylum Support Office (EASO) was established in 2011 to help improve the implementation of the Common European Asylum System. It is based on a model of voluntary cooperation which imposes few direct obligations on Member States. The EASO coordinates support for Member States experiencing particular pressure on their asylum and reception systems but may only deploy experts as part of an asylum support team at the request of a Member State. It has no direct powers of intervention. The EASO also coordinates activity in migration “hotspots” established in Greece and Italy but Member States are often slow to respond to its appeals for the deployment of additional national experts and interpreters.
1.3The Regulation proposed by the Commission would build on the expertise developed by the EASO, transforming it into the European Union Agency for Asylum and giving it stronger powers to monitor and improve the overall functioning of the Common European Asylum System. The EU Asylum Agency would provide operational and technical assistance to Member States, strengthen practical cooperation and the exchange of information, and operate the new fairness mechanism which forms a central part of the Commission’s proposed reform of the Dublin system. The aim is to achieve greater convergence in the assessment of protection needs across all Member States, and a sustainable and more equitable distribution of asylum seekers, within the framework of “a more humane, fair and efficient European asylum policy” based on “a fair sharing of responsibilities”.
1.4The proposed Regulation draws on the model of support and intervention envisaged in an earlier Commission proposal which would transform the EU’s External Borders Agency (Frontex) into the European Border Guard Agency. The EU Asylum Agency would have enhanced powers to intervene directly if a Member State takes insufficient action to address “disproportionate pressure” on its asylum and reception systems or if its inaction jeopardises the overall functioning of the Common European Asylum System. It is part of a wider set of reforms of EU asylum law foreshadowed in the Commission Communication, Towards a reform of the Common European Asylum System which we have recommended for debate in European Committee B. The first phase of reforms, published together, encompass changes to the Dublin rules, the Eurodac asylum database and the European Asylum Support Office. The second phase, expected over the summer, will propose changes to substantive EU asylum laws.
1.5In launching the reform package in May, the Commissioner for Migration and Home Affairs (Dimitris Avramopoulos) commented:
“If the current refugee crisis has shown one thing, it is that the status quo of our Common European Asylum System is not an option. The time has come for a reformed and more equitable system, based on common rules and a fairer sharing of responsibility. With the proposed reform of the Dublin system, the reinforcement of Eurodac and the transformation of EASO into a true European Agency for Asylum, today we are taking a major step in the right direction and putting in place the European-level structures and tools necessary for a future-proof comprehensive system. We will now put all our efforts into working side-by-side with the European Parliament and Member States. We must turn these proposals into reality as swiftly as possible.”
1.6The UK participates fully in the European Asylum Support Office but will not be bound by the proposed Regulation (which is subject to the UK’s Title V justice and home affairs opt-in) unless the Government decides to opt in. The Immigration Minister (James Brokenshire) recognises the value of the European Asylum Support Office in facilitating the exchange of information and providing practical assistance, but notes that this has largely been achieved through voluntary cooperation with Member States. He expresses concern that imposing a duty to cooperate with the Agency and an obligation to provide information would increase the burdens on national administrations. The Minister acknowledges the “important role” that a strengthened Agency could play in supporting the asylum and reception systems of certain Member States and making them more effective, but is wary of the “significant amount of oversight that the Agency will have over national asylum systems” and the extra demands it may place on Member States. He notes that the Commission may require the Agency to intervene in support of a Member State, even if the Member State concerned has not requested assistance, and makes clear that the functioning of national asylum systems is “a sovereign issue”. He sets out the factors which will inform the Government’s opt-in decision.
1.7There is much continuity in the tasks currently undertaken by the European Asylum Support Office and the enhanced role envisaged for the EU Asylum Agency. Member States, however, will be under a duty to cooperate and exchange information with the Agency. The Agency itself will be better resourced, have a more hands-on role in monitoring Member States’ compliance with EU asylum laws and identifying weaknesses, increased capacity to provide operational and technical assistance, and greater powers to deploy experts in Member States.
1.8Whilst the proposed Regulation is subject to the UK’s Title V (justice and home affairs) opt-in, it is clear that the Government’s opt-in decision cannot be treated in isolation from the wider package of reforms concerning the Dublin rules and the Eurodac database which were put forward by the Commission in May and are considered in our Sixth Report (agreed on 15 June). The Government’s opt-in decision will doubtless also be affected by the outcome of the referendum on the UK’s membership of the EU. We ask the Minister to explain how the referendum outcome will affect the Government’s handling of opt-in decisions to be taken before the UK’s formal withdrawal from the EU. Until he does so, we consider that this latest opt-in decision should be debated on the floor of the House together with the opt-in decisions concerning the revised Dublin and Eurodac rules which were recommended for debate on 15 June.
1.9The UK will remain bound by existing EU asylum laws until its withdrawal from the EU takes effect. Given that the length of the withdrawal process remains uncertain, we ask the Minister to provide further analysis on the following questions:
1.10We consider that the debate should also explore:
1.11The proposed Regulation remains under scrutiny. We ask the Minister to provide the further analysis we have requested ahead of the opt-in debate. We would also welcome an early indication of the reactions of other Member States to the Commission’s reform package and progress reports on any negotiations that take place before the opt-in debate. In the event that the Government decides not to opt into the proposed Regulation, we will wish to explore the Government’s position on the possibility of establishing some form of cooperation with the new Agency. We draw the proposed Regulation to the attention of the Home Affairs Committee.
Proposal for a Regulation on the European Union Agency for Asylum and repealing Regulation (EU) No. 439/2010: (37749), 8742/16 + COM(16) 271.
1.12The European Asylum Support Office (EASO) is based in Malta and became fully operational as an EU Agency in February 2011. As its name suggests, its purpose is to support Member States in applying EU asylum laws, strengthen practical cooperation between them, coordinate the provision of operational support, and operate as a centre of expertise on asylum matters. EASO cannot take decisions on individual asylum claims but seeks to ensure that they are dealt with in a coherent way by all Member States. Its main tasks include:
1.13The UK participates fully in the EASO, despite its patchwork participation in measures constituting the Common European Asylum System. The UK opted into the first phase of substantive EU asylum laws, adopted between 2003 and 2005, and continues to play a full part in the revised Dublin and Eurodac systems. The UK has not opted into, and is not bound by, further changes to EU asylum rules agreed between 2011 and 2013. These more far-reaching rules establish common minimum standards for determining who qualifies for international protection and the rights conferred, the procedures for granting and withdrawing international protection, and reception conditions pending the examination of an asylum claim.
1.14Although the UK has chosen to participate in the EASO, it retains the right to decide whether or not to opt into the proposed Regulation transforming EASO into the EU Asylum Agency. The consequences of a decision not to opt into the proposed Regulation are unclear. In principle, the Government would continue to participate in EASO unless the Council (acting on a Commission proposal) determines that the co-existence of two separate entities—EASO and the EU Asylum Agency—would be inoperable.
1.15The proposed Regulation would repeal the 2010 Regulation establishing the European Asylum Support Office and create in its place the European Agency for Asylum—a centre of expertise with a stronger mandate to facilitate the implementation of the Common European Asylum System and improve its overall functioning so that there is greater convergence in the way the rules are applied and the outcomes they produce. The main tasks of the Agency are to:
1.16The proposed Regulation seeks to strengthen the basis for cooperation between the Agency and Member States by establishing a “duty to cooperate in good faith and an obligation to exchange information”. The specific tasks envisaged include:
1.17The Agency would continue to gather information on refugee-producing third countries and strengthen coordination amongst Member States by establishing networks for the exchange of country of origin information. The Agency would also develop common analyses and guidance on specific countries of origin which Member States would be required to take into account when examining an asylum application. The aim is to foster convergence between Member States in determining who qualifies for protection. The Agency would have an important role to play in advising the Commission on the situation in third countries included in the proposed common EU list of safe countries of origin and in gathering information on how Member States are applying the “first country of asylum”, “safe third country” and “European safe third country” concepts under the EU Asylum Procedures Directive, as well as their designation, at national level, of safe countries of origin and safe third countries. The aim is to ensure greater convergence in the interpretation and application of these concepts.
1.18One of the core functions of the Agency would be to develop operational standards, indicators, guidelines or best practice to ensure a more uniform application of EU asylum laws across all Member States.
1.19The Agency would be required to establish a mechanism to monitor Member States’ implementation of the Common European Asylum System, their compliance with operational standards, guidance and best practice issued by the Agency, and the overall capacity and capability of their asylum systems, including how prepared they are for responding to disproportionate pressures on their asylum and reception capacity. The purpose of monitoring would be to identify deficiencies and seek to address them as early as possible. To ensure that the Agency is able to fulfil this monitoring role, Member States would have to provide it with the necessary information and facilitate on-site visits.
1.20Each Member State would be monitored at least once every five years by a team of experts drawn from the Agency’s own staff and the Commission according to a schedule set out in the Agency’s multiannual and annual programmes. The Agency would also be able to initiate a monitoring exercise if the functioning of a Member State’s asylum or reception systems were to give rise to “serious concerns”. Monitoring and assessment by the Agency would involve a number of procedural steps:
1.21The Member State concerned would have up to nine months to implement its action plan. If it failed to do so, and the shortcomings in its asylum and reception system were so serious as to jeopardise the functioning of the Common European Asylum System, the Commission would effectively take over from the Agency, adopting its own recommendations which would set out the action to be taken to remedy any serious deficiencies. At this stage, if the Member State failed to comply with the Commission’s recommendations, the Commission could require the Agency to deploy a team of experts to provide specific operational or technical support (see below).
1.22The proposed Regulation sets out the operational and technical assistance which the Agency would be able to provide to Member States. It includes:
1.23This assistance could be provided by asylum support teams or from a specially constituted asylum intervention pool at the request of a Member State or, in certain circumstances, at the instigation of the Commission.
1.24Member States may request assistance from the Agency on the basis of a detailed needs assessment, particularly if they are experiencing disproportionate pressures on their asylum and reception systems. The assistance would be provided by asylum support teams consisting of the Agency’s own staff and experts provided by Member States. In order to ensure that there is an adequate supply of national experts and continuity in the assistance provided, the proposed Regulation would require each Member State to establish a pool of national experts who are immediately available for deployment and stipulates that deployment must be for a minimum of 30 days. The Agency, assisted by Member States, would also establish a list of interpreters available for deployment or for video-conferencing.
1.25An even more rapid form of deployment would be possible for Member States “subject to disproportionate pressure that places exceptionally heavy and urgent demands” on their asylum and reception systems. Deployment in these circumstances would be from a specially constituted asylum intervention pool consisting of at least 500 national experts placed at the immediate disposal of the Agency. Each Member State’s contribution to the asylum intervention pool, and the profiles of the experts, would be determined annually by the Agency’s Management Board.
1.26A Member State may request the deployment of an asylum intervention team or it may be initiated by the Agency itself if the Member State concerned takes insufficient action to address the pressure on its asylum and reception systems or if its inaction jeopardises the overall functioning of the Common European Asylum System. Once the conditions for deploying an asylum intervention team are met, national experts forming part of the asylum intervention pool must be deployed immediately, regardless of the domestic situation in their own Member States. The Commission would determine, by means of an implementing act, the operational or technical assistance to be provided by the Agency. The Member State hosting the asylum intervention team would be under an obligation to cooperate with the Agency and to agree an operational plan. The asylum intervention team may be supplemented by the Agency’s own staff and asylum support teams.
1.27All interventions, whether requested by a Member State or initiated by the Commission, must be based on an operational plan agreed by the Agency and the host Member State setting out the conditions governing the deployment of asylum support teams or experts from the asylum intervention pool, the operational and technical assistance they will be providing, and benchmarks for evaluating their impact. Once an operational plan has been agreed, Member State should deploy experts from their national expert pool within seven working days and from their asylum intervention pool within three working days.
1.28The Agency may also provide operational and technical assistance in migration “hotspots”, coordinating its activities with those of other EU agencies, particularly Frontex. When operating on the ground in a Member State, the Agency would be required to deploy one or more coordinating officers to act as an interface between the Agency, the host Member State and national experts deployed in asylum support teams or from the asylum intervention pool.
1.29Denmark does not participate in EU asylum and migration measures but the proposed Regulation would require the Agency to “facilitate operational cooperation with Denmark”. Iceland, Liechtenstein, Norway and Switzerland—all countries associated with the Schengen free movement area—would (as now) be entitled to participate in the Agency on the basis of mutually agreed working arrangements. As well as facilitating operational cooperation between Member States and third countries, the Agency may establish working arrangements enabling it to cooperate with third countries. It would also have a broad responsibility for coordinating resettlement activity, building capacity and monitoring resettlement to Member States.
1.30The management structure of the Agency would remain largely unchanged, but with the addition of a Deputy Executive Director reflecting the Agency’s broader mandate.
1.31The Commission estimates that the Agency would need to recruit an additional 357 staff members by 2020 (bringing the total to 500) to fulfil the new tasks conferred on it by the proposed Regulation, costing around €364 million (£284 million) for the period 2017–20.
1.32The proposed Regulation is based on Article 78(1) and (2) of the Treaty on the Functioning of the European Union (TFEU) which authorises the EU to develop a common policy on asylum, subsidiary protection and temporary protection and to adopt measures establishing a common European asylum system.
1.33The Commission considers that there is “a common and shared interest” in ensuring the proper application and functioning of the Common European Asylum System which can best be achieved through “concerted action among Member States with the support of the European Agency for Asylum”.
1.34The Minister recognises the important role played by the European Asylum Support Office and values many of its activities, including support for practical cooperation, the exchange of information between Member States, the provision of country of origin information, and the development of common training programmes and curricula. He notes that these activities are based on voluntary cooperation between the Agency and Member States and expresses concern that the introduction of a “duty to cooperate” and an “obligation” to exchange and share all necessary information is “likely to be an additional burden on resources”.
1.35The Minister sees value in enhancing the Agency’s role as a repository of expertise on the asylum situation within the EU and in relevant third countries, drawing on a wide range of sources, and adds:
“Combined with the Government’s own analysis of the situation, this added information would be welcomed.”
1.36Similarly, he “sees value in in common training programmes and curriculums to ensure common standards are being followed” but notes that “a comprehensive training programme already currently exists that is deployed to asylum staff”.
1.37The Minister is cautious about expanding the Agency’s role in providing country of origin information through the development of common analyses on specific third countries which Member States would be required to take into account when examining related asylum applications. He comments:
“The UK’s Country of Origin Information reporting already provides this function and therefore we are somewhat concerned by the obligation to use other forms of analysis. Article 10(4) [of the proposed Regulation] sets out the requirement for Member States to provide monthly reporting on decisions taken on applications for international protection. Given the impact on resource to provide this information on a regular basis, the Government is considering the inevitable impact.”
1.38The Minister highlights the new role given to the Agency to assist the Commission in reviewing the situation in third countries included (or recommended for inclusion) in the proposed common EU list of safe countries of origin. He notes that the UK maintains its own national list of safe countries of origin (under Section 94 of the UK’s Nationality, Immigration and Asylum Act 2002) and has not opted into a recently proposed Regulation which would establish a common EU list.
1.39The Minister recognises that the Agency could play “an important role” in supporting Member States that require further assistance to implement EU asylum laws and in ensuring more uniform application across the EU but expresses concern at “the significant amount of oversight that the Agency will have over national asylum systems”. He also highlights “the added burden” of responding to the Agency’s requests for information on a wide range of asylum-related matters, such as asylum procedures, equipment, infrastructure, reception conditions and quality of protection, as well as staff and financial resources. He notes that the proposed Regulation would empower the Commission, in certain circumstances, to determine (by implementing act) the operational and technical assistance to be provided by the Agency to support a particular Member State. He comments:
“It is noted that this may improve the effectiveness of certain asylum systems across the EU; however the Government would be concerned if an EU Agency was making recommendations about our national asylum system that could in some way be forced upon us. We are committed to running a high quality and effective asylum system but are of the firm view that the functioning of the system is a sovereign issue.”
1.40The Minister notes that, under the existing EASO model, Member States requesting assistance “retain autonomy on the selection of the number and profiles of experts as well as on duration of their deployment”. The proposed Regulation would enhance the Agency’s role in determining, through its Management Board, the number and profile of national experts available for deployment in asylum support teams and in setting up the asylum intervention pool. The Minister comments:
“The UK currently provides resource to EASO on a voluntary basis (we have provided more resource than any other Member State) and our view is that position should remain.”
1.41The Minister confirms that the proposed Regulation is subject to the UK’s Title V (justice and home affairs) opt-in Protocol and that the three month deadline for notifying the UK’s opt-in decision is expected to expire around 3 October 2016. He sets out the factors which will inform the Government’s opt-in decision:
1.42The Minister makes clear that the Government’s decision on participation in the proposed reform of the Dublin system will be “an important consideration”, given the role envisaged for the Agency in operating the fairness mechanism and its involvement in other aspects of the Dublin reforms.
1.43The Minister does not expect the proposed Regulation, as drafted, to have “significant additional financial implications” for the UK, but anticipates that the strengthened obligation to provide the Agency with information and (potentially) to make more staff resources available, may require “some additional resource”. He notes that the Agency (as is the case with EASO) would meet the costs of deploying national experts as part of the asylum intervention pool or asylum support teams.
1.44The Minister notes that the Commission gave a first “high-level presentation” of the key features of the proposed Regulation to the relevant Council working group on 12 May, followed by a short “exchange of views”. He expects detailed negotiations to begin towards the end of May or in early June on this and related proposals concerning the wider Dublin system and the Eurodac asylum database. Further proposals for reform of the Common European Asylum System are expected over the summer.
None, but see our Report on the Commission Communication, Towards a reform of the Common European Asylum System and enhancing legal avenues to Europe: Thirty-third Report HC 342-xxxii (2015–16),(11 May 2016).
1 See the agreed by the Council on 21 April 2016 on convergence in asylum decision practices.
2 The term “asylum” and “international protection” are used interchangeably in this chapter. They encompass claims which result in the conferral of refugee status under the UN Refugee Convention and other forms of subsidiary protection which are not a direct result of individual persecution but where an individual would be at risk of “serious harm” (including from armed conflict) if returned to his or her country of origin.
3 See the Commission’s of national experts pledged by Member States and the number actually deployed in response to EASO and Frontex appeals for assistance in implementing the EU-Turkey deal on migration agreed in March.
4 The proposed fairness mechanism is intended to ensure a more equitable distribution of asylum seekers amongst Member States. See our Sixth Report HC 71-iv (2016–17), chapter (15 June 2016).
5 See p.20 of the Commission Communication, Towards a reform of the Common European Asylum System and enhancing legal avenues to Europe. See our Thirty-third Report HC 342-xxxii (2015–16), (11 May 2016).
6 See our Twentieth Report HC 342-xix (2015–16), (20 January 2016), our Twenty-fifth Report HC 342-xxiv (2015–16), (9 March 2016), our Twenty-eighth Report HC 342-xxvii 2015–16), (13 April 2016) and our Sixth Report HC 71-iv (2016–17), chapter 7 (15 June 2016).
7 See our Thirty-third Report HC 342-xxxii (2015–16), (11 May 2016).
8 See the issued on 4 May 2016.
9 The provides a detailed overview of its current mandate and activities.
10 See Article 4a of to the EU Treaties.
11 See Article 3 of the proposed Regulation.
12 See Article 4 of the proposed Regulation.
13 See Article 5 of the proposed Regulation.
14 See Article 7 of the proposed Regulation.
15 See Article 6 of the proposed Regulation. For details of the proposed fairness mechanism, see our Sixth Report HC 71-iv (2016–17), chapter 1 (15 June 2016).
16 See Articles 8–9 of the proposed Regulation.
17 See Article 10 of the proposed Regulation. The Agency’s Management Board (on which all Member States are represented) would first have to endorse the common analysis as well as any subsequent changes made to it.
18 See our Sixth Report HC 342-vi (2015–16), (21 October 2015) and our Sixteenth Report HC 342-xv (2015–16), (6 January 2016).
19 See Article 11 of the proposed Regulation.
20 See Article 12 of the proposed Regulation.
21 See Article 13 of the proposed Regulation.
22 See Article 14 of the proposed Regulation.
23 See Article 15 of the proposed Regulation.
24 See Article 16(3) of the proposed Regulation.
25 See Article 17 of the proposed Regulation.
26 See Article 22 of the proposed Regulation.
27 See Article 18 of the proposed Regulation.
28 See Article 22 of the proposed Regulation.
29 See Article 19 of the proposed Regulation.
30 See Article 21 of the proposed Regulation.
31 See Article 25 of the proposed Regulation.
32 See Articles 33–35 of the proposed Regulation.
33 See p.4 of the Commission’s explanatory memorandum accompanying the proposed Regulation.
34 See para 15 of the Minister’s Explanatory Memorandum.
35 See para 16 of the Minister’s Explanatory Memorandum.
36 See para 18 of the Minister’s Explanatory Memorandum.
37 See para 20 of the Minister’s Explanatory Memorandum.
38 See para 21 of the Minister’s Explanatory Memorandum.
39 See para 25 of the Minister’s Explanatory Memorandum.
40 See para 25 of the Minister’s Explanatory Memorandum.
41 See para 29 of the Minister’s Explanatory Memorandum.
42 The deadline starts to run from the date on which the last language version of proposed legislation is published—expected to be between 1–4 July in this case.
43 See para 13 of the Minister’s Explanatory Memorandum.
44 See paras 34–7 of the Minister’s Explanatory Memorandum.
11 July 2016