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Foreigners seeking international protection in the European Union: reception, qualification and procedure

In the light of Article 4(2)(j) of the Treaty on the Functioning of the European Union (TFEU)[1], the European Union (EU) has shared competencies in the Area of Freedom, Security, and Justice (AFSJ)[2]. Within AFSJ, EU has shared competencies, including policies on border checks, asylum, and immigration. Specifically, these provisions are found in Articles 77 to 80 TFEU, with particular significance given to Article 78. According to the first paragraph of this article, “The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties”[3]. The second paragraph of the same article provides the basis for adopting legal acts for the purpose of realizing the objectives of the first paragraph. This involves the construction of the Common European Asylum System, with components including, inter alia: a uniform status of asylum for nationals of third countries, valid throughout the EU; a uniform status of subsidiary protection for nationals of third countries who, without obtaining European asylum, are in need of international protection; standards concerning the conditions for the reception of applicants for asylum or subsidiary protection; common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status.

Precisely based on the mentioned reasons, EU decided to adopt the so-called triad of directives concerning international protection. Firstly, there is directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (hereinafter: Reception Directive)[4]. The purpose of this legal act, according to its article 1, is to lay down standards for the reception of applicants for international protection in Member States. Secondly, there is Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (hereinafter: Qualification Directive)[5]. The aim of this legal act, in light of its Article 1, is to lay down standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection-granted. Thirdly, there is Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (hereinafter: Procedural Directive)[6]. According to Article 1 of this directive, the aim is to establish common procedures for granting and withdrawing international protection pursuant to Qualification Directive. From these three directives, one can interpret the three stages experienced by an alien seeking international protection in the EU. These stages are: reception, qualification, and procedure.

           

It is also worth mentioning how international protection is understood in the EU from a legal perspective. According to Article 2(1)(a) of the Qualification Directive, international protection means refugee status and subsidiary protection status. This means that if a foreigner seeks international protection in the EU, in reality, their efforts may result in either being recognized by EU Member States as a refugee, a person eligible for subsidiary protection, or a rejection decision. Recognition is declarative in nature, rather than constitutional. Importantly, these terms also have their definitions under EU law. Firstly, according to Article 2(1)(d) of the Qualification Directive, “refugee means a third-country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it, and to whom Article 12 does not apply”. Secondly, according to Article 2(1)(f) of the Qualification Directive, “person eligible for subsidiary protection means a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) does not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country”. This definitively means that when a foreigner seeks international protection in the EU, in practice, as a rule, the first step is to determine whether such a foreigner qualifies as a refugee. Only in the case of failure to qualify as a refugee is the assessment made for classification as a person eligible for subsidiary protection. If there are no grounds for a positive decision and providing international protection to the foreigner, a negative decision is issued. The process of granting international protection described in this way is, however, a significant simplification. This is because, as already noted, in the case of a foreigner seeking legal protection in the EU, there are three fundamental stages that such a foreigner will experience. These stages will interweave, with the starting point being the submission of an application for international protection. In other words, these stages do not occur sequentially.

           

The reception stage comprises all legal provisions concerning the conditions for receiving foreigners in the EU Member States[7]. This means that such legal norms have an administrative character and determine where the foreigner (applicant for international protection) should live, whether they should receive specific material benefits, and whether they will have access to the job market and education. In other words, the rules qualifying for the reception stage decide on the level of a foreigner’s dignified life in one of the EU Member States. Additionally, an important objective is to harmonize the conditions for receiving applicants to limit their secondary movements, which is directly influenced by the diversity of conditions for reception in individual EU Member States, as emphasized in Recital 12 of Reception Directive. The Reception Directive also includes many other essential legal provisions. For example, it provides the right to information, according to which EU Member State is obligated to inform, within 15 days from the date of submission of the application to the competent authority, about the determined benefits and obligations that the foreigner must fulfill. This information must be presented in a language understandable to the foreigner and should also include information about legal assistance and access to healthcare. The relevant legal norm in this regard is contained in Article 5 of Reception Directive.

           

The qualification stage involves substantive legal provisions outlining the criteria that must be met for a foreigner seeking international protection in the EU to be recognized as a refugee or a person eligible for subsidiary protection[8]. On one hand, concerning the qualification process for obtaining refugee status, the provisions of Articles 9 to 12 will be applied (article 9 – Acts of persecution; article 10 – Reasons for persecution; article 11 – Cessation; article 12 – Exclusion). On the other hand, in the qualification process for obtaining subsidiary protection status, the provisions of Articles 15 to 17 of Qualification Directive will come into play. Moreover, the qualification stage also includes legal provisions determining how the assessment of applications for international protection should be conducted and specifying the scope of such protection. Regarding the latter, it is worth mentioning that a foreigner benefiting from international protection in the EU has the right, among other things, to protection against refoulement, information, family unity, employment, education, healthcare, social welfare, and access to accommodation. Relevant legal norms in this regard are found in Qualification Directive, serving as a kind of charter of rights for foreigners enjoying international protection in the EU.

The procedural stage consists of formal provisions that enable the implementation of the substantive legal provisions outlined by Qualification Directive[9]. The relationship between the provisions constituting this stage and those comprising the qualification stage can be likened to the relationship between criminal law and criminal procedure codes. This signifies a classic relationship between substantive and procedural law regulating the same subject matter. Procedural Directive, containing formal provisions, establishes procedures for the grant of international protection in the EU and defines the rights and obligations of the parties involved in such proceedings. Firstly, this includes legal norms specifying basic principles and guarantees. Secondly, it pertains to provisions outlining procedures at first instance. Thirdly, it involves provisions concerning procedures for the withdrawal of international protection. Fourthly, it encompasses provisions regarding appeals procedures. The Procedural Directive also contains legal norms concerning the authorities responsible for appropriately processing applications for international protection. The respective obligations of EU Member States in this regard are outlined in Article 4 of Procedural Directive.

           

In summary, Reception Directive, Qualification Directive, and Procedural Directive contain provisions that can be assigned to the stages of reception, qualification, and procedure within granting international protection in the EU. These stages commence upon the submission of an application for international protection by a foreigner seeking such protection in the EU. While all these stages operate at the same time, they differ in essence. The so-called triad of directives functions in cases of standard conditions for the arrival of a foreigner seeking international protection in the EU. In non-standard situations, such as a massive influx of displaced persons, a different EU legal instrument is applied, for instance, Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof[10]. According to Article 1 of this legal instrument, its objective is to establish minimum standards for giving temporary protection in the event of a mass influx of displaced persons from third countries who are unable to return to their country of origin and to promote a balance of effort between EU Member States in receiving and bearing the consequences of receiving such persons.

           

On the sidelines, it is worth mentioning that currently, legislative efforts are underway in the EU related to the European Commission’s 2020 proposal for the New Pact on Migration and Asylum[11]. This includes several legislative proposals envisioning the application of EU secondary law in the form of regulations. This appears to be a far-reaching solution, touching upon the EU’s shared competencies. It holds significant implications for the ability of EU Member States to exercise their own competencies, making it a matter that affects their sovereignty[12]. The application of EU regulations in the realm of shared competencies is challenging to justify, as it must meet standards arising not only from the principle of conferral or the principle of proportionality but also the principle of subsidiarity. This means that where possible and effectively achieving the goal, the form of a EU directive should be applied. This carries the risk of potential disparities in implementation and legal interpretation between different EU Member States, but it is a natural consequence of employing harmonizing methods rather than unifying methods, such as EU regulations. It is essential to note that unifying methods does not always have to be direct (through the enactment of a EU regulation) and can also take an indirect form by introducing more restrictive provisions regarding cooperation between EU Member States, for example, through the appropriate amendment of the so-called triad of directives. It seems that current efforts in the EU should aim in this direction, as cooperation between EU Member States can lead to indirect unification, ultimately contributing to avoiding disparities in the interpretation and implementation of legal provisions among different EU Member States. Such proposals may lead to the creation of a more coherent and fair migration policy based on the currently applicable forms of EU secondary law, namely EU directives, which are easier to justify from the perspective of the principles of proportionality and subsidiarity.

Reference

[1] OJ C 202, 7.6.2016, p. 1-388.

[2] Regarding the understanding of the essence of the division of competencies between the EU and its Member States in the field of migration and refugee law, please refer to results of the research group „Migration Challenges – Legal Responses” (headed by Prof. Marcin Wielec) within the Central European Professors’ Network coordinated by the Central European Academy (Scientific article entitled „Limits and use of EU competences: General considerations in the context of policies on border checks, asylum and immigration”; Scientific chapter entitled „Migration and Refugee Affairs: Role of Constitutional Court in Poland, Hungary, Czech Republic, Slovakia, Serbia, Croatia, Slovenia and Romania”).

[3] See: Geneva Convention of 28 July 1951 (https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-relating-status-refugees – last access: 08.01.2024); Protocol of 31 January 1967 relating to the status of refugees (https://www.ohchr.org/en/instruments-mechanisms/instruments/protocol-relating-status-refugees – last access: 08.01.2024).

[4] OJ L 180, 29.6.2013, p. 96-116.

[5] OJ L 337, 20.12.2011, p. 9-26.

[6] OJ L 180, 29.6.2013, p. 60-95.

[7] Barry, K. (2021) Where is the vulnerability assessment tool? Disabled asylum seekers in Direct Provision in Ireland and the EU (recast) Reception Conditions Directive (2013/33/EU), Social Policy Review 33. Policy Press, pp. 223-242.

[8] Aldea, A. (2018) Applying Qualification Directive-2011/95/EU. CJEU’s Decision C-473/16, Bulletin of the Transilvania University of Braşov, Series VII: Social Sciences and Law 11.1, pp. 141-148.

[9] Spalding, A. (2014) EU Asylum Procedures and the Right to an Effective Remedy by Marcelle Reneman, King’s Law Journal 25.3, pp. 483-487.

[10] OJ L 212, 7.8.2001, p. 12-23

[11] New Pact on Migration and Asylum (https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/promoting-our-european-way-life/migration-and-asylum/delivering-eu-pact-migration-and-asylum/new-pact-migration-and-asylum_en – last access: 10.01.2024)

[12] In this regard, it is necessary to refer once again to the results of the research group „Migration Challenges – Legal Responses” (headed by Prof. Marcin Wielec) within the Central European Professors’ Network coordinated by the Central European Academy (Scientific article entitled „Limits and use of EU competences: General considerations in the context of policies on border checks, asylum and immigration”; Scientific chapter entitled „Migration and Refugee Affairs: Role of Constitutional Court in Poland, Hungary, Czech Republic, Slovakia, Serbia, Croatia, Slovenia and Romania”).

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