Mathilde Crepin, PhD Candidate Dickson Poon School of law, UNHCR appointed judge at the national court of asylum law (CNDA) in Paris
In 2011, the political turmoil in North Africa and in the Middle East prompted the flight of millions of people from their home place. Some of them attempted to seek protection in Europe, causing a significant rise of asylum applications in the Member States of the European Union (EU) in 2013 and 2014. Under both International and EU Law. Member States have the obligation to take efficient and coordinated measures to address the needs of refugees and this necessity is even more pressing in light of the latest statistics, estimating that approximately one million asylum applications will be lodged in the European Union in 2015.
Unfortunately, Member States have proven relatively unable to respond to this humanitarian crisis at the European level. EU countries agreed in 1999 to create a Common European Asylum System (CEAS), setting up minimum standards for harmonizing asylum systems in Europe. However, instead of consistently applying the provisions of the CEAS, Member States have adopted unilateral measures to tackle the outflow of asylum seekers in their territory. In response to this situation, the Commission issued in September 2015 a decision on 40 infringements directed at 19 governments of the EU. At this occasion, the European Commission First Vice-President, Frans Timmermans, stated that the CEAS could function only if everyone “played by the rules”. However, the inability or unwillingness of the Member States to “play by the rules” reveals deeper concerns, namely that the CEAS might not be adequate to efficiently tackle the current needs of asylum seekers and migrants in Europe.
Inadequate repartition of Asylum Seekers in Europe
The Dublin system of the CEAS provides that the European state competent to examine an asylum claim is the first state of entry (although there are exceptions to this rule). This system is now disintegrating because it puts an undue burden on the first receiving countries in Europe. Due to the uncontrollable number of new arrivals by boat every day, the reception capacities of Greece and Italy have deteriorated and, in reaction to this situation, Germany has recently suspended the application of the Dublin Regulation for Syrian refugees coming from Greece. In order to help the frontline members, the Commission has decided to relocate 160 000 asylum seekers but those measures are far from being sufficient given the large influx of individuals seeking assistance in Europe. A stronger political involvement of states that have not yet received a significant amount of asylum requests is therefore desirable.
Diverging procedures for determining the legal status of asylum seekers
The asylum procedures established under the revised CEAS seem also inadequate when applied in the context of massive arrivals. The traditional asylum procedures imply an individual determination of the refugee status, including a personal interview and an examination of the asylum seeker’s profile. This requirement poses a great burden on the national systems in terms of financial and material resources, in particular in circumstances of sudden influx. In order to better tackle the bulk of applications, some Member States have taken unilateral measures as allowed by article 31(7) of the revised Asylum Procedure Directive. For instance, Sweden has decided to apply fast-tracking procedures for Syrian nationals. However, such initiatives often have a negative impact on the processing time of applications/files from other nationals, which further hampers the efficiency of the overall national systems of asylum.
Additionally, under the CEAS, the outcomes of asylum procedures in domestic jurisdictions can be quite divergent. States of the European Union have a significant margin of appreciation when applying the CEAS and, as a result, individuals from the same nationality can receive different forms of protection depending on the country where they lodge their asylum application. They can be either granted “refugee status”, “subsidiary protection” or other types of “humanitarian protections”. For example, in countries like Germany, Poland, Denmark, Bulgaria, Syrians are generally granted “refugee status”, whereas in Sweden, Spain, the Netherlands, Malta and Cyprus they more often receive “subsidiary protection”. The determination of the legal status is important because it has a direct impact on the rights enjoyed by beneficiaries of international protection. Under the Qualification Directive, refugees are entitled to longer residence permits and more extended rights in terms of social welfare. Moreover, the vague provisions on the right to family reunification in the same directive allow Members States to restrict this right for the beneficiaries of subsidiary protection.
The considerable heterogeneity in terms of reception and treatment of asylum seekers in the European Union is particularly inadequate when faced with large outflows of individuals because it can direct the influx of people towards more welcoming Member States, thus reinforcing the imbalance of repartition of refugees in Europe. As recently expressed by Human Rights Watch, “the reality is that asylum seekers face a protection lottery in the EU due to wide disparities in standards and conditions”.
The Temporary Protection Directive: a solution to the current “refugee crisis” in Europe?
In 2001, the European Union elaborated the Temporary Protection Directive (TPD), an instrument specifically conceived to deal with exceptional situations of “mass influx of displaced persons from third countries”, which at first sight seems to correspond to the current circumstances in Europe. Indeed, Article 2(d) of the TPD provides that temporary protection should apply to a sudden outflow of people coming from a particular country or region. In this context, states can facilitate the entry of individuals seeking international protection and grant a temporary status to a designated group. Although the flow of asylum seekers in Europe is relatively mixed in terms of nationality, the number of Syrians arriving to European shores is sufficiently high to possibly warrant the application of a temporary protection for this group only. The regime of temporary protection has the advantage of providing a legal and harmonized status to people in need of international assistance. In particular, the directive establishes a group determination mechanism, which could ease the administrative process for the examination of asylum applications and minimize the material and financial costs of the procedures.
Given its advantages, it may seem surprising that EU Member States have not even considered the TPD as an option in the current crisis. The triggering mechanism of the TPD appears to be the main obstacle to the application of the directive. Temporary protection, unlike refugee or subsidiary protection, is not a justiciable right but a political decision. It must be first proposed by the EU Commission, and voted by a qualified majority of the Council. Member States can also initiate the mechanism through a proposal addressed to the Commission but they have been so far reluctant to engage in this process. One of the possible reasons for that is the fear of creating a pull-factor to Europe. However, it should be noted that although the TPD does not preclude its beneficiaries from lodging an asylum application, it constitutes, by nature, a temporary solution. The cessation clause under the temporary protection regime is broader and easier to trigger than under the traditional asylum regime. Unlike refugees, holders of temporary protection are in a less stable situation and do not benefit from a durable solution. The existence of pull-factor seems therefore unlikely.
Additionally, the dispositions concerning the repartition of the beneficiaries of the temporary protection are vague and rest essentially on the political will of Member States. Article 25 simply provides that the directive shall be implemented in a “spirit of community solidarity” and chapter VI establishes a regime of repartition based on the capacity of reception of each state, this capacity of reception being determined by the participating Member State independently. The absence of a pre-agreed “burden-sharing” mechanism can thus deter states from making commitments that might not be followed by others.
In conclusion, the CEAS appears to be inadequate in situations of large influx of asylum seekers. Not only the repartition mechanism under the Dublin Regulations is not suitable for in such situations, but the procedures of individual status determination are too burdensome to deal with the current crisis and often lead to divergent outcomes in different Member States. A form of collective protection, as set out in the TPD, appears to be a more appropriate solution to tackle the mass outflow of people seeking asylum. However, the special procedure established by the directive is dependent on the political will of European countries and, unfortunately, Member States have not so far adopted a “spirit of community solidarity” in dealing with the refugee crisis in Europe as recently demonstrated by their inability to find an agreement on a permanent and binding relocation scheme to significantly relieve the migratory pressure on the frontline countries. 
 The 28 Member States of the EU registered 309 040 asylum applications in 2011, 431 090 in 2013 and 626 960 in 2014. Eurostat, Asylum and first time asylum applicants by citizenship, age and sex Annual aggregated data.
 The Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention) sets out the rights and duties of refugees. The Convention has been signed and ratified by all the EU member states.
 The EU states have established a Common European Asylum System to implement in a harmonized manner their obligations under the Refugee Convention.
 The current CEAS, recently revised, consists in three Directives and two regulations: European Parliament and Council Directive 2013/32/EU of 26 June 2013 on common procedures for granting and withdrawing international protection  OJ L 180/60 (Revised Asylum Procedure Directive); European Parliament and Council Directive 2013/33/EU of 26 June 2013 laying down minimum standards for the reception of applicants for international protection  OJ L 180/96 (Revised Reception Conditions Directive); European Parliament and Council Directive 2011/95/EU of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted  OJ L 337/248 (Revised Qualification Directive); European Parliament and Council Regulation (EU) No 604/2013 of 26 June 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  OJ L 180/108 (Revised Dublin Regulation); European Parliament and Council Regulation (EU) No 603/2013 of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints .  OJ L 180/78 (Revised Eurodac Regulation).
 For example Germany, Austria and Slovenia have reintroduced temporary controls at their borders. See European Commission, Statement following the temporary reintroduction of controls by Germany, particularly at the German-Austrian border (2015); European Commission, Statement following the temporary reintroduction of controls by Austria, particularly at the Hungarian-Austrian border (2015); European Commission, Statement following the temporary reintroduction of controls by Slovenia at the border with Hungary (2015).
 European Commission, More Responsibility in managing the refugee crisis: European Commission adopts 40 infringement decisions to make European Asylum System work (2015).
 Revised Dublin Regulation, art 13. IDA Syrians (2015)rocedureslieve the migratory pressure on the frontline member states. l the EU member States for ective appe
 AIDA report, Germany: halt on Dublin procedures for Syrians (2015) <http://www.asylumineurope.org/news/24-08-2015/germany-halt-dublin-procedures-syrians>
 European Commission, “Managing the refugee crisis: immediate operational, budgetary and legal measures under the European Agenda on Migration” (Communication) COM(2015) 490 final
 Revised Asylum Procedure Directive, Art 31 (7).
 Asylum Information Database (AIDA), Country Report Sweden, April 2015, <http://www.asylumineurope.org/sites/default/files/report-download/aida_sweden_second_update_final.pdf> at 33.
 For example, in Sweden some of the non-Syrian applicants are put on temporary hold.
 The Revised Qualification Directive sets out minimum standards for granting international protection.
 EASO, Annual Report on the Situation of Asylum in the European Union 2014, July 2015, <https://easo.europa.eu/wp-content/uploads/EASO-Annual-Report-2014.pdf> at 44.
 Revised Qualification Directive, art 24 and art 29.
 Human Rights Watch, EU: Leaders Duck Responsibilities on Refugees, September 2015, <https://www.hrw.org/news/2015/09/24/eu-leaders-duck-responsibilities-refugees>.
 Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof  OJ L 212/12.
 Ibid, Art 1.
 Ibid, Art 5.
 Ibid, art 25.
 Traynor Ian, Germany to push for compulsory EU quotas to tackle refugee crisis, The Guardian (2015) <http://www.theguardian.com/world/2015/oct/23/refugee-crisis-germany-push-compulsory-eu-quotas>