A Novel Approach to EU Asylum Law

This Practitioners’ Handbook on the Common European Asylum System (CEAS) and EU and Member States’ Commitments under the UN Global Compact on Refugees and the UN Global Compact for Safe, Orderly and Regular Migration identifies CEAS provisions which fulfil the Compacts’ requirements as well as those that diverge therefrom. Through this exercise, the Handbook highlights how practitioners, including policymakers, can use the Compacts to augment the protective scope of corresponding CEAS provisions or pursue the required law or policy change to align law and practice with states’ commitments.

On 27 September 2022, the Handbook was launched at an event organised in collaboration with (B)OrderS: Centre for the Legal Study of Borders and Migration at Queen Mary University of London (QMUL) and the Centre for International Law at the University of Bristol. The recording is available here.

The Handbook authors – Professor Elspeth Guild (QMUL), Dr Kathryn Allinson (University of Bristol), Dr Nicolette Busuttil (University of Westminster) and Dr Maja Grundler (Royal Holloway University of London) – examined how EU Member States (and associated states) can apply the CEAS in a manner consistent with GCM and GCR commitments, with leading experts in the field providing their insights and expertise.

Compact-compliant interpretation

Such a consistent application is important because the Compacts explicitly articulate the entitlement of all migrants and refugees to the full range of human rights and present a contemporary framework through which states can respect, protect, and promote these rights. Further, they clarify, interpret, and operationalise the content of a states’ human rights obligations to people seeking protection. Consequently, the Compacts provide a migrant-centred approach that recognises the realities on the ground and the central role that human rights protection plays. As instruments endorsed by most EU Member States, they should be taken into account in the interpretation of the CEAS and EU migration law.

The two Compacts are guided by the principles of non-discrimination and non-regression, respect for the rule of law, and respect for human rights obligations. It is in these foundational principles that the authors see coherence with the CEAS, which is also grounded in these principles. However, the Handbook mainly explores the areas where the CEAS, in practice, does not comply with these principles and is instead utilised to exacerbate the situational vulnerability of people seeking international protection. The contribution of the Compacts, and the Handbook, is in highlighting these tensions and setting out what a Compact-compliant (and thus human rights and rule of law compliant), interpretation of the CEAS should look like. The Compacts’ added value is the contextualisation of these core principles so that the CEAS, as secondary law, can be interpreted in line with them. They refine existing obligations to enable the CEAS to be brought in line with primary law. More specifically, the Compacts can fill the (abstract) principles of EU primary law with detailed content by showing how the CEAS instruments, through which this primary law is applied, should be interpreted in practice.

The Handbook’s significance

During the launch event, three leading experts in the field of asylum and migration – Dr Madeline Garlick (UNHCR), Ms Catherine Woollard (ECRE) and Professor Violeta Moreno-Lax (QMUL) – commented on the Handbook’s relevance and potential impact.

Dr Garlick began by highlighting how the Handbook shows that the Compacts are relevant for improving the asylum systems of states in the Global North, as much as for those in the Global South. She emphasised how while EU law does reflect international law, implementation is lacking. As such, she argued that the Handbook has the potential to counter the EU’s current security-focused approach to migration and asylum.

Catherine Woollard commented on the Compacts’ role as a rearticulation of existing obligations, rather than as one of independent standard setting. She outlined how the Compacts’ (and the Handbook’s) main contribution lies in showing how existing commitments can be interpreted, implemented and operationalised and enforced in line with pre-existing obligations under international law. The Compacts’ main value here is the detail they add to otherwise often abstract international obligations.

Professor Moreno-Lax emphasised the Handbook’s unique nature amongst commentaries on the CEAS. In her view, the Handbook has the potential to revolutionalise the vision of the CEAS through the four principles which underpin the analysis throughout the Handbook – non-discrimination, rule of law, non-regression, and vulnerability. This, she argued, implies that the EU ought to abandon its punitive and deterrence-focused approach to migration and asylum.

Conclusion

The discussion at the launch illustrates how the Handbook has the potential to counter those entrenched practices in EU asylum law which do not comply with human rights standards.

The Handbook’s identification of areas of coherence and friction between the CEAS and the commitments states made when endorsing the Global Compacts proves useful and equips practitioners with tools through which they can challenge entrenched problematic interpretations and practices within the CEAS. Where there is coherence, the Global Compacts provide interpretive and operational guidance on the content of existing rights obligations. Where there is friction, the Handbook’s findings will inspire those practitioners who seek to challenge existing CEAS provisions and perhaps also policy-makers who seek to reform the CEAS, while adhering to the principle of non-regression.

A Compact-compliant interpretation and reform of the CEAS has the potential to meaningfully improve the protection of asylum-seekers, refugees and (other) migrants. The Compacts’ rich and detailed provisions provide concrete guidance for a human rights-focused, non-discriminatory protection system grounded in cooperation and responsibility sharing, both between states and between states and migrants.