Harmonization Asylum Policies in Europe: Saving Lives by Fixing a Deficient System

Ever since the so-called “refugee crisis” of 2015, the topics of asylum, international protection, and irregular immigration have been at the forefront of the European Union’s political debates. Recently, tensions in the rhetoric have risen significantly, despite the fact that immigration numbers have dropped below pre-crisis levels. Nevertheless, the election of a right-wing government in Italy, recent actions taken by the Hungarian government, and upcoming elections both at the European and national levels have made this issue one of electoral importance. These tensions reached their climax in late June, at the European Council meeting, where the issue of immigration was the main topic of discussion. The talks lasted almost 9 hours, but the conclusions, branded as a first step forward, made the overall consensus clear: for the purposes of responsibility and burden sharing, Europe needs to further harmonize their asylum policies. Harmonization, in short, refers to the elimination of differences between policy application in different countries. The current EU approach of focusing only on the instruments of the Common European Asylum System (CEAS), however, will likely not lead to the desired results. The effort must be broadened in such a way that every EU institutions promotes the idea of harmonization through their decisions and actions.

Attempts of continent-wide policy integration can be easier said than done. This can be best observed in some of the rulings issued by the Court of Justice of the European Union (CJEU). One recent case is X and X v État belge, which dealt with the ability and responsibility of member states to issue humanitarian visas based on the requirements of Article 25 of the Visa Code. This article allows member states to issue a visa with limited territorial validity in exceptional cases, particularly “when the Member State concerned considers it necessary on humanitarian grounds.” The question before the CJEU was whether a state has the responsibility to issue a visa under this article if it is aware that upon arrival to their territory the applicant will lodge a claim for international protection, and therefore would over-stay the 90-day period regulated by the Visa Code. Furthermore, knowing of the intention to claim asylum, would refusing the issuance of such a visa violate the obligations of the state to grant protections to those in need?

The ruling of the Court was foreseeable. While the Opinion of the Advocate General Mengozzi admits that it is “crucial that, at a time when borders are closing and walls are being built, the Member States do not escape their responsibilities, as they follow from EU law” and that the refusal to issue humanitarian visas can endanger lives, the operative part of the judgment states clearly that issuing a humanitarian visa knowing that this will lead to the lodging of an asylum application “does not fall within the scope of [the Visa Code] but, as EU law currently stands, solely within that of national law.” This means one thing: while there is a known need for the respect of EU principles, states still have wide discretion in deciding how to deal with their systems of granting protection. The implications could be far-reaching. Calling for the issuance of short-term humanitarian visas in cases such as this could be one of the ways that deaths in the Mediterranean are prevented, since a number of asylum seekers would no longer need to find dangerous and illegal ways of reaching the continent’s shores. While some might call this ‘asylum shopping,’ such a measure would have also lifted some of the burden off the states that lie along major migratory routes. Migrants would now be able to travel directly to a country where they wish to claim asylum, no longer having to arrive in Europe through one of the few countries through one of the current points of entry.

Of course, a different ruling in X and X would have solved neither the problem of burden sharing nor the problem of irregular migration. But it would have been a step in the right direction, and it would have sent a signal from the CJEU that standards of granting protection across the continent must be uniform from country to country. If the EU is truly interested in harmonizing policies of asylum, it should acknowledge that it must take actions beyond simply amending the Directives and Regulations of CEAS. A new approach must be taken on all fronts, and it must ensure not only the integration of policies, but also that said policies are applied consistently across all countries at all times. Only by doing this can the EU ensure that its asylum policies remain harmonized in times when the issue is used for electoral and political gains.

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