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Upon request by the LIBE committee, this study examines the workings of the Common European Asylum System (CEAS), in order to assess the need and potential for new approaches to ensure access to protection for people seeking it in the EU, including joint processing and distribution of asylum seekers. Rather than advocating the addition of further complexity and coercion to the CEAS, the study proposes a focus on front-line reception and streamlined refugee status determination, in order to mitigate the asylum challenges facing Member States, and guarantee the rights of asylum seekers and refugees according to the EU acquis and international legal standards.
This article examines detention of asylum-seekers, more specifically how European Union (EU) law simultaneously constructs the asylum-seeker as a detainable subject, whilst also limiting states’ powers of detention. The power to detain is limited by international refugee and human rights law, but EU law sets more stringent standards. While international refugee law regards the asylum-seeker as a presumptive refugee, EU law seems to take a different view. Nowadays, the legal and physical rite of passage from irregular migrant to asylum-seeker to refugee defines the predicament of refugees who seek protection in the EU. Asylum-seekers are vulnerable to detention as irregular entrants, when they are in transit in search of effective protection, and if they become deportable under the Dublin System. Coercive forms of detention are, too glibly in our view, assumed to be permitted to ensure they cooperate with identification and registration processes. The chapter aims to problematise this detainability of asylum-seekers, examining in particular how their increasing deportability and transferability may increase their detainability. Drawing on empirical examples from the treatment of refugees arriving in the EU in 2015, it suggests that the EU limits on detention need further implementation and institutionalisation.
This chapter examines the caselaw of the European Court of Human Rights (ECtHR) and Court of Justice of the European Union (CJEU) on access to protection, the Dublin system and presumptions of 'safety', and detention, in order to provide critical insights into the concept of effective judicial protection in Europe since the so-called 'refugee crisis' of 2015. The two courts have not provided effective protection in a transformative sense, in that they have not adopted progressive rulings to overcome the crisis-inducing elements of European asylum and migration law. Instead, they have deferred to governmental accounts of 'crisis' and accepted dubious factual and legal arguments. Against this backdrop, we note that the need for effective judicial protection in even a minimal sense, to hold the line on the most basic of rights in this field - protection against refoulement and arbitrary detention - is more acute than ever, and may also be in decline.