Effective asylum systems depend upon design

From the beginning, the EU Migration and Asylum Pact has claimed to be something it is not, a conference has heard.

The view was expressed by Professor Cathryn Costello, in her keynote speech to the ICEL annual Asylum and Migration Conference (26 June).

The conference was opened by Mr Justice Anthony Collins of the Court of Appeals and former Advocate General at the European Court of Justice of the European Union. He said that, while courts interpreted and applied the law, they must do so according to the rules enacted by legislators. 

“When the rules change, the interpretation changes,” he added, with courts balancing the application of legislation and the protection of fundamental rights within the framework established by society.

Fragmented approaches

Regarding efforts to "nationalise" asylum law, Mr Justice Collins argued that migration and asylum were challenges best addressed collectively through the EU rather than through fragmented national approaches. 

He then introduced Cathryn Costello, professor of Global Refugee and Migration Law at the Sutherland School for Law in UCD, describing her as “a star of international and European refugee and migration law”.

Professor Costello discussed the risks to human rights and rule of law principles in implementing the EU Migration and Asylum Pact.

She said that, despite legislative reforms, the Common European Asylum System remained rooted in international law, with the EU treaties requiring that it operated in accordance with the 1951 Refugee Convention and the principle of non-refoulement, both of which were also reflected in the EU Charter of Fundamental Rights.

“A lot of the fundamentals have stayed the same, and that, I think, is, in some instances, for the good,” Professor Costello said.

However, she also described two enduring "pathological features" of the current system.

Irregular journey

The first is the continued lack of safe and legal routes to asylum, meaning that "most people who claim asylum may have to risk a dangerous and irregular journey" before being able to seek protection. 

The second concerns the lack of equitable responsibility-sharing across Europe, as well as globally, “that also enables the dignity and agency of refugees”.

“The pact, from the beginning, has claimed to be something that it's not. It claims to be comprehensive and that it regulates migration and asylum comprehensively,” she said.

She added: “Of course, it doesn't regulate migration at all.

“Most migration is legal, it's for work, it's for family reunification, it's for study, it's for tourism.

“The pact has nothing to say on most forms of migration and mobility. The pact is really about asylum-seeking,” and what is “framed as asylum-seeking by irregular means”.

She also disputed that the pact was novel, as many of its measures had already been implemented, challenged in court, and shaped by existing case law, meaning judges would often be applying established legal principles, rather than interpreting entirely new concepts.

Costello said that the pact was shaped by the political framing of the 2015 refugee arrivals as a crisis caused by failures in European asylum policy, rather than as a humanitarian situation in which most applicants ultimately received protection.

And, despite its essential failure, by the EU-Turkey deal, which created "inhuman and degrading conditions" across EU places of reception, in particular so-called ‘hotspots’ on the Greek islands, while later becoming ineffective as Turkey ceased accepting returns.

In her view, this narrative led to an emphasis on "more containment, more deflection, more deterrence".

This was despite limited evidence that such measures were effective and significant evidence that they could impose severe human-rights and humanitarian costs.

And it was this narrative that informed the pact, Costello said. 

“We're going to try to contain refugees elsewhere, and if people claim asylum, we're imagining many or most of them are not actually in need of international protection”.

She described the next part of the narrative as deportation, “back home, if home is identifiable, but we're also creating legal processes which would enable people to be simply exiled or removed”.

Legal capacity for control

“Or as German legal scholar, Dr Dana Schmalz, recently put it, ‘be abducted and sent to anywhere else in order to demonstrate our legal capacity for control’.”

Costello contrasted such practices with central features of international refugee protection such as non-refoulement, prohibition on collective expulsion, non-discrimination, non-penalisation, the right to liberty, and obligations to assess individual circumstances.

“The evidence for the over-criminalisation is just absolutely astonishing,” she said, speaking of the Kinsa case, in which the CJEU established limits on criminalisation.

The facts concerned a Congolese woman prosecuted for bringing her own child with her to seek protection in Italy.

'Massive overuse'

“This massive overuse of the criminal law is a huge, huge problem,” Costello said.

She also cited a recent Irish report,  ‘Criminalising Asylum in Ireland: Prosecuting Asylum-Seekers without a Valid Passport or Equivalent Document’ (Dr Bríd Ní Ghráinne and Chunyan Chon, co-designed with Katie Mannion, Irish Refugee Council) which demonstrated that Ireland had also prosecuted asylum-seekers wrongfully.

The introduction of additional procedures, differentiated time limits, and multiple screening mechanisms under the pact risked increasing, rather than reducing, complexity, she said.

Prof Costello also emphasised the need to examine how the implementation of the pact would interact with established principles of protection and legality.

Implementation "doesn't have to unleash problematic practices," but she suggested that aspects of the legislative framework created legal tensions that courts might ultimately be required to address.

Costello observed that "there are constitutionalised principles at play here, and also principles of international law".

More important legal principles

The task at hand, she suggested, was to “work out which aspects of the pact … have to be read down, read narrowly, read away in order to give effect to more important legal principles”.

In conclusion, Costello suggested that effective asylum systems depended upon institutional design, well-resourced decision-making, high-quality first-instance determinations, and access to legal representation, not merely legal information.

Measures identified as beneficial included rapid decisions on strong protection claims, peer review among decision-makers, early investment in decision-making resources, and close examination of successful appeals as indicators of possible weaknesses in initial decision-making.