Photo: UNHCR

Asylum Law of the European Union

The European Union is increasingly harmonising asylum law. The legal basis for common standards on the asylum procedure has been determined.

In June 2013 the second phase of the Common European Asylum System (CEAS) drew to a close and the common standards for the asylum procedure were set. The Swiss Refugee Council is a member of the European Council on Refugees and Exiles (ECRE) and constantly follows developments in EU law and its interaction with Swiss asylum law.

Harmonisation of EU asylum law

At the EU summit meeting in May 1999 in Tampere, Finland, the European Council called for the development of a Common European Asylum System (CEAS). Based on the Geneva Refugee Convention and the European Convention on Human Rights (ECHR), the EU has enacted regulations and directives that also cover the area of asylum law. The regulations are directly binding on EU member states. The member states must transpose the directives into their own national law.

Transposition into national law up to 2015

Between 2003 and 2005 the EU enacted directives and regulations that set common minimum standards. Since the entry into force of the Treaty of Lisbon in December 2009, the EU has agreed to develop common standards and thus deepen harmonisation efforts in accordance with the Treaty on the Functioning of the European Union (Art. 78). Thereupon, the corresponding legal acts were recast in 2011 and 2013. The directives recast in 2013 hat to be transposed into national law by the member states by July 2015.

The key legal instruments of the EU

  • Qualification Directive: It regulates the recognition and legal status of persons requiring international protection.
  • Asylum Procedures Directive: It sets the minimum standards for conducting the asylum procedure.
  • Reception Conditions Directive: It establishes minimum standards for the reception of asylum applicants during their asylum procedure.
  • Dublin III Regulation (and the implementing regulation): It regulates which Dublin state is responsible for the examination of an application for asylum.
  • Eurodac Regulation (and the implementing regulation): It regulates the protocols for fingerprint comparison relevant to asylum for the effective application of the Dublin system.

Further directives relevant to asylum law:

The Schengen Agreement and EU law associated with it influence EU asylum law directly and indirectly.

Internal and external borders of the EU

With the elimination of border controls on borders within the Schengen area, a common system for the EU became necessary, so one can determine the state responsible for processing an application for asylum. The Dublin Agreement was developed for this purpose on international level. In the meantime, the procedure for determining this responsibility has become part of EU law in the form of the Dublin Regulation.

Access to asylum procedure now more difficult

At the same time, the EU intensified controls on its external borders. This approach is meant to offset the loss of security that may have taken place with the elimination of controls on borders within the Schengen area. In actual practice, this step impedes access by refugees to asylum procedures in Europe. In addition, the EU member states are jointly pursuing a strict visa policy and are strict about granting visas.

Schengen legal standards relevant

Portions of the legal norms for the Schengen area (known as the Schengen acquis) are relevant for asylum law, too, e.g., the Return Directive. It regulates the return of third-country nationals who are present in the Schengen area illegally.

Deviation of certain countries

The asylum standards (called the CEAS acquis) are binding either not at all or only in part for Denmark, Ireland and the United Kingdom. Special rules apply to Ireland and the United Kingdom. In addition, Bulgaria and Romania currently do not belong to the Schengen area.

Obligations of Switzerland

The standards of the European Union are of central importance for Switzerland. By entering into association agreements regarding Schengen and Dublin; Switzerland has agreed to implement changes in these areas on an ongoing basis. 

Guillotine clause

If it fails to do so, it is threatened with what is known as the guillotine clause (complete, immediate termination of the association). Despite its Schengen and Dublin association, Switzerland is not formally obligated to accept the further directives of the Common European Asylum System (CEAS).