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folder Section VI European Framework for Refugee Protection

In this section The Refugee Law Reader turns to the legal norms developed in Europe regarding refugee protection. This is a complex area, as two quite separate actors both have significant impact on asylum and related protection issues. First, the Council of Europe, comprising 47 countries, addresses general human rights protection, and its activities have significant implications for the legal position of asylum applicants and refugees. Second, the European Union (EU) – an organization that is entirely separate from the Council of Europe, although the EU’s 28 Member States are simultaneously members of the Council of Europe – has embarked on an active programme to develop new legal norms affecting immigration, borders, and asylum.

        The first part of Section VI focuses on the soft law that the Council of Europe has developed in its inter-governmental cooperation efforts. The backbone of these materials are the Recommendations and Resolutions of the Committee of Ministers and the Parliamentary Assembly relating to international protection. Although these documents are politically binding, they do not have immediate legal consequences. Nonetheless, they are useful as aids to interpretation of the undertakings of Council of Europe member states with regard to international protection. Next, sub-Section VI.1.2 examines the European Convention on Human Rights, a core treaty of the Council of Europe. Although the Convention itself makes no reference to international protection of refugees, the judgments issued by the European Court of Human Rights impose important obligations regarding asylum on state parties. Furthermore, all members of the Council of Europe must adhere to the Convention, as interpreted by the Court, and must accept the jurisdiction of the European Court of Human Rights.

        The second half of Section VI highlights the key EU legislation, both Regulations and Directives, concerning international protection of asylum seekers, refugees and persons in need of subsidiary protection. Although the central concern of the EU is the successful functioning of the internal market (a market for the free movement of goods, persons, services, and capital across the internal frontiers), the EU expanded its scope in 1999 to include immigration and asylum. Indeed, the EU has adopted three five-year programmes (the most recent Stockholm Programme lasting until 2014) in order to create a Common European Asylum System intended to be based on a harmonized interpretation and application of the 1951 Geneva Convention. Sub-Section VI.2 also includes important decisions of the Court of Justice of the European Union, which is competent to issue binding interpretations of EU law, though it normally cannot receive complaints directly from individual asylum seekers.

        Within the Council of Europe one of the main challenges to refugee protection stems from the ever increasing case load of the European Court of Human Rights. Protocol No. 14 to the Convention, intended to enhance the Court’s capacity, has thus far not resolved the growing backlog. Within the EU one of the central challenges is that, despite the goal of developing a Common European Asylum System, genuinely common standards and practices are still far from a reality, despite improvements in the recast asylum instruments adopted in 2011-13. In addition, the EU is placing increased priority on external migration control measures; these actions inevitably limit access to asylum procedures, and thereby restrict access to protection, for unknown numbers of persons in need of international protection. 

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folder VI.2 The European Union

The EU comprises 28 Member States. It was established through three treaties signed by six European states in the 1950s, the most important in its early years being the EEC Treaty of 1957. The initial instruments were elaborated and updated by successive treaties over the following decade, with the Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) defining the EU primary legal framework today. The EEC Treaty’s original objectives were to achieve economic integration in the region. Three main transformations have subsequently taken place, which have significantly impacted upon the asylum field. These have resulted, firstly, from the continued enlargement of the group of states participating to 28 at present; secondly, through the consolidation of EU law in this area, which now takes priority over the national law of the Member States; and thirdly, the widening of the Union’s responsibilities with the addition of justice and home affairs, including asylum and migration, as a Union or Community competence, in 1999. From that date the EU has been a central actor in determining the law of international protection in the Member States. The EU’s structure incorporates several key institutions including the European Parliament, the European Council and the Court of Justice of the European Union (CJEU), as well as independent Agencies whose work is relevant to asylum, including the European Asylum Support Office (EASO), the Fundamental Rights Agency (FRA) and the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex).

     In addition, EU asylum law and practice has great potential to influence significantly the development of the international protection system more broadly. This is in part because many countries look to the EU as a leading standard-setter in legal and normative terms. In addition, however, given that State practice is a source of international law, harmonized practice (if and when it is achieved) in all EU Member States will be extremely important in contributing to the evolution of international refugee law worldwide.

Editor’s Note

This section is structured to provide an overview of EU developments of refugee law. The section starts with the criteria and contents of protection and then follows the road of the asylum seeker attempting to access the procedure in order to be recognised as in need of protection.