ICAR 'Focus On' July 2009: European Elections and UK Asylum Policy

28 July 2009

  • ICAR Focus on is a new development of our weekly asylum update. Each month we will comment on items of news or policy developments which will include further references for more in-depth analysis. In this first edition, ICAR staff member Gabriela Quevedo looks at the impact of the recent European Elections on wider EU asylum policy and how it may affect the UK.

According to the Centre for European Policy Studies the results of the June 4th European Elections reveal a new political uniformity across Europe, in that  all six[1] most populated nations, including the UK, ‘took the same political decision in their national political contexts: to give more voice to the centre-right'[2]. This raises questions on how public attitudes towards migration are affected negatively by economic crisis, as documented by the European Social Survey. Responding to this mood among the electorate, political parties tend to favour policies aimed at curbing immigration.


In theory then, this new EU parliament could gain even more leverage to enforce security and borders controls, to the detriment of international refugee law and human rights standards, as argued by the European Council of Refugees and Exiles (ECRE). But would that be significatively different from the trend followed by the previous parliament? Are elements of UK asylum policy really at stake as a result of these elections?


The passage of EU legislation is set up on a system of three pillars. Once a proposal is made, it will usually become EU law through a process of co-decision between the Council and the  Parliament. The Parliament legislates on five key aspects of EU asylum policy: temporary protection, determining responsibility (Dublin Regulation), reception of asylum seekers, qualifying for protection and asylum procedures. Its power to appoint, oversee and censure the Commission, as well as it's budgetary authority, effectively gives the Parliament an important decision- making role within the EU. Moreover, if, as seems likely, the Treaty of Lisbon comes into force in December 2009, the Parliament will become a much more powerful player in the EU asylum lawmaking process.


Under EU legislation, national governments are obliged to ensure that their policy and practice does not conflict with EU directives. However, a closer analysis indicates that, in fact, the UK and other governments retain the right to opt out of any measures affecting control of its external borders. Apart from opting out, Amnesty International has argued that member states can also pursue their own national policies, especially in the field of human rights, by adopting varying interpretations of European directives on asylum. As a result, most member states only agree with EU standards that allow them to pursue their own policies, shying away from a truly uniform European policy.


For the Refugee Council, the UK has been particularly adept at complying with EU asylum policy without fundamentally changing national policy. For example, In the UK, a provision from the Qualifications Directive allows to automatically consider lack of documents or their late submission as evidence of insufficient cooperation or lack of credibility, and to sanction asylum seekers on that basis.


So far the UK has sought to influence the direction of EU asylum policy in areas the Home Office has identified as paramount, such as reducing ‘illegal' migration, strengthening EU borders and developing a common EU definition of a refugee. It has also played an important role in drawing up the common standards laid out in the Dublin Regulation to prevent so-called ‘asylum shopping.'[3]


The EU has certainly raised some standards in the asylum determination process (i.e. the principle of subsidiary protection). However, a close examination of how these policies are designed and implemented tells a completely different story. For example, the standards set out by the Procedures Directive provides severely limited rights in aspects such as: the possibility to stay in the country whilst the asylum application is being examined and the effective access to a personal interview, legal aid and interpretation services. And while the push towards the Common European Asylum System (CEAS) might use the language of rights, UNHCR notes that notions such  ‘safe third country' and ‘safe countries of origin', in the  Dublin Regulation have also provided a rather powerful mechanism to send asylum seekers back to countries in which they have spent time - in some cases, a very short time - on their way to Western Europe."[4]


Thus the objective of EU involvement in making asylum law has not really been to ensure human rights protection, and there is no reason to believe that this will change in the future. In fact a new centre-right European Parliament with increased powers could mean retrogression in this area. Harmonisation of asylum and immigration policy will be pursued, whilst ensuring that member states can still formulate their own national policies.[5] On both levels, we can expect the borders of the UK and other member states to be progressively tightened.

[1]  These countries are: Germany, France, United Kingdom, Italy, Spain and Poland.

[2]  Guild, Elspeth; Carrera, Sergio and Eggenschwiler, Alejandro (2009): Informing the Asylum Debate: CEPS

[3]  ICAR navigation guide on UK asylum law and process ,

[4]  UNHCR (2001): Background paper No. 2 The application of the "safe third country" notion and its impact on the management of flows and on the protection of refugees

[5]   Country Profile: European Union, in: Focus Migration No 17, March 2009: Hamburg Institute of International Economics


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