Without a doubt, the present refugee crisis is one of the greatest that the modern world has encountered. International organisations, together with member states, have tried to apply all existent legislation and measures, as well as develop new ones, in order to respond to the needs of the refugees.

The present report is going to focus on the European Union (EU), as well as on the United Nations (UN), on the measures they proposed in order to respond to the refugee crisis and on their framework legislation regarding asylum seekers. The report is also going to take into account the possible sanctions that can be imposed on Member States, if they refuse to receive refugees, as well as on the possible collaboration of the two organisations for a better functioning of the whole system.

The European Union

There are approximately 1.5 million recognised refugees living in the 28 Member States of the European Union, Norway and Switzerland. Asylum requests flows are not constant, depending on outside factors such as wars or the possibility to leave their country of origin. They have, for example, varied from 425 000 applications for EU-27 States in 2001 down to under 200 000 in 2006. In 2012, there were 335,895. In 2013, there were 434, 160 applications (BBC, 2014). As a comparison, the number of persons seeking asylum from non-EU countries in the EU-28 during the third quarter of 2015 reached 413 800 (Eurostat, 2015). It can thus be concluded that, taking into account the present situation, it is more needed than ever for the EU member states to develop a clear and complete action plan regarding refugees.

One of the first elements that should be taken into account is the difference between asylum seekers and refugees, whose legal definition is presented in the 1951 Geneva Convention relating to the Status of Refugees that has been signed and ratified by all EU Member States. An asylum seeker is a person submitting a request for refugee status. The asylum seeker is not guaranteed to have refugee status unless the Member State decides they qualify, on the basis of a clear legal procedure. On the other hand, pursuant to Article 1 of the Convention, a refugee is a person who is outside of his country of nationality, based on a well-founded fear of being persecuted – definition which generally applies to people fleeing warzones (Cantor, Durieux, Hampson, Mandal, 2015).

The framework of the EU legislation on asylum can be found in the Treaty on the Functioning of the EU (TFEU), as well as in the EU Charter of Fundamental rights.

According to TFEU, Article 67 (2), member states have the obligation to frame a common policy on asylum, which should be fair towards third-country nationals. Moreover, according to Article 78 of the same document, the Union is obligated to develop a common policy on the protection of asylum seekers, in accordance with the Geneva Convention of July 28, 1951, and the Protocol of January 31, 1967 relating to the status of refugees. The common measures will refer to a uniform status of asylum and protection, as well as common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status.

Finally, according to Article 18 of the EU Charter of Fundamental Rights, the right to asylum shall be guaranteed in accordance to the TFUE, as well as to the Geneva Convention, mentioned above.

Based on this framework, as well as on their present needs, the EU member states have established a Common European Asylum System (CEAS) since 1999. During the past years, it has developed in order to harmonise minimum standards for asylum seekers, as well as to create a financial solidarity between member states, through the European Refugee Fund. 

As a consequence of the responses to a 2007 Green Paper (Commission of the European Communities, 2007) and of the results of an evaluation on the implementation of the existing instrument, the European Commission created a Policy Plan on Asylum, presented in 2008, by way of which three pillars for the development of CEAS were established: bringing more harmonisation to standards of protection by further aligning the EU States’ asylum legislation; effective and well-supported practical cooperation; increased solidarity and sense of responsibility among EU States, and between the EU and non-EU countries (European Commission, 2015).

The latest developments on this issue have referred to creating a stronger cooperation in order to ensure that asylum seekers are treated equally, as well as to create fairer, faster and more transparent and efficient asylum decisions, as well as to provide the necessary support to asylum seekers with special needs and unaccompanied minors. As a consequence, a series of EU legislation on asylum seekers has been revised. 

The revised Qualification Directive establishes the grounds for granting international protection to asylum seekers. The revised Dublin Regulation clarifies the level of protection of asylum seekers while establishing the authority that is responsible for examining their application, and clarifies the rules regarding the cooperation between states in that case. The revised EURODAC Regulation regulates the access to the EU database of the fingerprints of asylum seekers (European Commission, 2015).

Regarding specifically the current refugee crisis, the Council and the Commission of the EU have established a series of measures, created in order to protect the functioning of the Schengen area and to reduce the pressures in the current context. The main points have been presented in the Council Conclusions on Measures to handle the refugee and migration crisis, of September 2015, as well as in the State of Play: Measures to Address the Refugee Crisis of December 2015. 

The main points refer to the fact that the EU has been encouraging member states to increase reception capacities. It also established hotspots in Italy and Greece, with support of the other member states, as well as other essential members of the international community. In order for a better organisation to take place, member states have to communicate their capacities for relocation, while maintaining a close cooperation to Greece and Italy, taking into account their attributions. 

While respecting the fundamental rights of all the people concerned, Member States have the possibility to take certain measures regarding asylum seekers, in the case of their non-cooperation, such as coercive measures or non-admissibility of subsequent asylum applications of individuals concerned. Other international actors, such as Frontex, will offer their support in order to help member states fulfil their obligation to do adequate controls. That is an essential measure for member states because, even while fulfilling their obligation regarding asylum seekers, they also need to ensure the safety of their own citizens. 

The EU also decided to invite Europol to accelerate the development of the European Migrant Smuggling Centre (EMSC), in order to strengthen its capacity to support member states in better preventing and fighting against migrant smuggling, which represents one of the most pressing problems nowadays. The member states also defined a common information strategy addressed to asylum seekers, migrants, smugglers and traffickers, in order to discourage them to embark on dangerous journeys, but also to explain the EU rules on migration in order to have better transparency – it is essential for migrants to understand the conditions for their stay in EU member states, as well as the possible sanctions if they break the law.

Regarding the budgetary measures, the European Commission has established €1.7 billion of EU funding in 2015 and 2016 in order to address the refugee crisis and the subsequent issues. The money will be used to provide emergency assistance to the most affected EU member states, but also to offer assistance and humanitarian aid in third countries. 

In regard to sanctions, there is no mention of such a system in any European law regarding asylum. However, after some of the member states have refused to abide by the quotas established by the EU, authorities in Germany, as well as in other Member States that have taken the lead in the refugee crisis, proposed to impose sanctions on countries that do not want to take part in a proposed new relocation scheme. However, based on the lack of legal basis, the proposal has not been implemented yet. While international treaties, as well as the EU law, encourage states to take in refugees, as well as obliges them to create uniform rules regarding asylum seekers, there is no formal obligation to accept the quotas that have been initially proposed.

The United Nations

As far as the UN is concerned, the main agency that deals with problems related to refugees is the United Nations High Commissioner for Refugees (UNHCR). The Framework for Durable Solutions for Refugees and Persons of Concern represents the basis of all decisions and recommendations that have been made regarding the issue. The Framework mainly refers to the cooperation between states in order to find solutions for the reintegration, rehabilitation and assistance for refugees, but also establishes the possibility to integrate them locally.

With regard to the recent crisis, the UN has acted on two different levels: while the Security Council has been leading debates with different representatives of the international community in order to establish peace in the areas affected by war, the High Commissioner for refugees has been working to assist asylum seekers, as well as countries that have been trying to accommodate them. Recent resolutions draw attention to the fact that humanitarian law should be respected at all times when dealing with ISIL and other terrorist organisations, as well as with refugees (SC/12132) and try to create a roadmap for the peace process in Syria, as well as set a timetable for talks on that matter (Resolution 2254 (2015)). 

The collaboration between the EU and the UN has mainly been coordinated by the High Commissioner for Refugees. In its reports, the UNHCR declared its faith that Europe has the means to manage the unprecedented influx of refugees and migrants and should combine resources of all its member states in order to organise efficient rescue operations. While remarking that Europe has dealt with large numbers of refugees before, the UNHCR noticed that a collaborative European approach is necessary in order to manage the current crisis. On that topic, UNHCR recommended that EU member states should have a more equal share of the responsibility, as not all countries agreed to take in refugees. While all EU member states are capable of providing assistance, their strength is based on their joint forces.

Assistance-wise, UNHCR has been funding a land version of Mare Nostrum, a year-long naval and air operation set up by Italy in 2013 to resolve the increased immigration to Europe. 150,000 migrants were rescued during the operation. UNHCR has also urged countries that don’t share the responsibility of taking in immigrants, such as Lebanon and Jordan, to fund the EU member states in order to help them on that matter.  (International Business Times, 2015)

UNHCR has also provided assistance regarding actions to prevent the loss of lives at sea, by strengthening the cooperation between the EU, UN, civil society, the International Maritime Organization, the International Organization for Migration. By their cooperation, they are trying to develop strategies that are consistent with international and European law, as well as to help governments implement these strategies in a uniform manner. 

Adequate reception conditions and procedures made for responding to the specific needs of asylum-seekers are essential, especially separated and unaccompanied children. As a consequence, the UN agency has also contributed to the drafting of national legislation on these matters, in order to make sure that the rights of all those involved are respected (UNHCR, 2015).

It can be concluded that the refugee crisis of 2015 has made a great impact on both the EU and the UN. While both international organisations had a clear framework regarding asylum seekers, it was not complete enough to support this year’s large influx of refugees. The cooperation between the two organisations has helped create a more clear strategy, as the UNHCR has been able to provide the EU with help from other essential actors of the international community. While there is no provision in the international law regarding the possibility to sanction states that refuse to take in a certain quota of refugees, the cooperation between the EU member states and the support provided by the UN has helped, in my opinion, more countries make a contribution on that matter.

 

By Georgiana Caramihai

 

This article was originally published in the tenth issue of the magazine, which can be accessed here.