International protection in the european union

Author:Ana-Maria Bolborici
Position:Senior Lecturer PhD, Transilvania University of Brasov, Faculty of Sociology and Communication
Pages:79-87
SUMMARY

This paper concentrates on a few aspects regarding the issues that arose after the massive waves of immigrants' who are in Europe. In this context, the purpose of the paper is to offer a perspective about what is international protection and asks the question: what rights do persons who may be in need of international protection have? It is obvious that the people in need of international protection do not have basic human rights and physical security guaranteed in their home countries and they have been forced to escape from the risk of persecution, inhuman or degrading treatment or other serious human rights violations. In this regard, we will analyze the acquis communautaire that the EU asylum organizations provide for forms of international protection and the corresponding procedure of international protection. We will conclude, stressing that even though the right to asylum is recognized and convergent at the European level and the roots are in the Geneva Convention, the Charter of Fundamental Rights of the EU, and other international and European legal instruments, in reality nowadays proves that there is a divergent tendency in applying the legal aspects to the persons who need international protection.

 
CONTENT
International protection in the European Union… 79
INTERNATIONAL PROTECTION
IN THE EUROPEAN UNION*
Ana-Maria BOLBORICI**
Abstract: This paper concentrates on a few aspects regarding the issues that arose after
the massive waves of immigrants' who are in Europe. In this context, the purpose of the
paper is to offer a perspective about what is international protection and asks the question:
what rights do persons who may be in need of international protection have? It is obvious
that the people in need of international protection do not have basic human rights and
physical security guaranteed in their home countries and they have been forced to escape
from the risk of persecution, inhuman or degrading treatment or other serious human
rights violations. In this regard, we will analyze the acquis communautaire that the EU
asylum organizations provide for forms of international protection and the corresponding
procedure of international protection. We will conclude, stressing that even though the
right to asylum is recognized and convergent at the European level and the roots are in the
Geneva Convention, the Charter of Fundamental Rights of the EU, and other international
and European legal instruments, in reality nowadays proves that there is a divergent
tendency in applying the legal aspects to the persons who need international protection.
Key words: Public Law, European Union Law
Introduction
Migration is a demographic phenomenon that is a result of the process of
globalization and regionalization to which we have witnessed in the last decade.
Migration can be seen as a normal phenomenon but with causes and multiple
socio-economic effects; migration is a necessary process having to regard that
generally, migration occurs from regions which have a less developed economy
compared to developed countries, being involved in this process are mostly adults,
especially young men, women, but also includes, elderly people and children.
Because of this diversity, and the range of intersectional identities, these
people can experience discrimination and numerous inequalities due to their
immigration status. For all of these people, migration represents a chance to start a
new life which hopefully ensures a decent secure life.1
* The article was prepared for the International Law Conference, "Current Issues within EU and
EU Member States: Converging and Diverging Legal Trends", 3rd edition, organized by the Faculty of
Law Review special issue, Decembre 2019, pp. 79-87
80 ANA-MARIA BOLBORICI
Refugees and asylum seekers are a diverse group but they have something in
common: they are subject to forced migration and fleeing from persecution in their
countries of origin.
‘Migrant’ is a broad term that covers persons who leave one country or region
to settle in another, some migrants voluntarily decide to move for a variety of
reasons, most of them for reasons that are not protection-related, for instance
because of family ties or due to economic hardship (as we mentioned before).
In this paper, we will refer strictly to the persons in need of international
protection, as those are the persons who are forced to flee to save their lives or
preserve their freedom.
The European Union’s laws on refugees and asylum seekers are constantly
changing and evolving, with the main challenge in the field of asylum being the
creation of a Common European Asylum System. which needed to converge the
different legal systems of the Member States and the international principles of
refugee protection, drawn by the 1951 Refugee Convention.
Immigration Rules point us to the definition contained the Convention
Relating to the Status of Refugees done at Geneva on 28 July 1951 and the New
York Protocol of 31 January 1967 (often just referred to as the ‘Refugee Convention’
or the ‘Geneva Convention’).
A refugee is defined in Article 1A of the Refugee Convention as a person who,
owing to a well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion, is outside
the country of his nationality and is unable, or owing to such fear, is unwilling to
avail himself of the protection of that country; or who, not having a nationality and
being outside the country of his former habitual residence as a result of such
events, is unable or, owing to such fear, is unwilling to return to it. There are some
points of views that in the following years, we could witness a rapid emergence of
new types of refugees, such as climate refugees, who could seek more
environmentally stable areas, such as Europe.2
In almost all cases those persons have no protection in their country of origin
and it is often their own government that is threatening to persecute them. In these
particular cases, if the countries do not let them in, and do not offer protection,
Law – Transilvania University of Braşov on the 29th-30th of November 2019. All links were last
accessed on 24 November 2019.
** Senior Lecturer PhD, Transilvania University of Braşov, Faculty of Sociology and
Communication, ana.bolborici@unitbv.ro.
1 See also Ana-Maria Bolborici, The immigration crisis – reflections concerning the crisis of European
identity, Bulletin of the Transilvania University of Braşov Series VII: Social Sciences • Law • Vol. 9 (58)
No. 1 – 2016.
2 Bacaian Livia Elena, The protection of refugees and their right to seek asylum in the European
Union, 2011, INSTITUT EUROPÉEN DE L’UNIVERSITÉ DE GENÈVE COLLECTION EURYOPA
VOL. 70- 2011, p. 8, https://www.unige.ch/gsi/files/6614/0351/6348/Bacaian.pdf.
International protection in the European Union… 81
they may be leaving them exposed to death, persecution, or other serious human
rights violations.3
That’ is why these people are vulnerable and need support, need international
protection because they do no't have the assurance of basic human rights and
physical security guaranteed in their home countries and in those circumstances
they have been forced to escape from the risk of persecution, inhuman, or
degrading treatment or other serious human rights violations.
Any person who is in a vulnerable position and asks for international
protections should be treated fully with respect to key fundamental rights, such as
human dignity, right to life, the prohibition of torture, the principle of
non-refoulement, right to asylum, and non-discrimination.
Human dignity stipulates that a human being has an innate right to be valued,
respected, and to receive ethical treatment. Right to life prohibiting the death
penalty or execution and stipulating a duty to take preventive measures in
situations where there is a real and immediate risk to the life of an individual.
Prohibition of torture that stipulates that no one can be subjected to torture or
to inhuman or degrading treatment or punishment. Principle of non-refoulement
referring to the obligation of states to refrain from expelling or returning a person
in any manner whatsoever to a situation where she/he may face persecution
and/or torture, inhuman or degrading treatment or punishment. Right to asylum
that gives everyone the right to seek and to enjoy in other countries protection
from persecution.
The regulation ensures that each person (whether adult or child) has the right
to make an application for international protection on his or her own behalf or
through his or her relative or representative.
Non-discrimination that prohibits any unfair treatment or arbitrary action or
distinction based on any ground such as sex, race, colour, ethnic or social origin,
genetic features, language, religion or belief, political or any other opinion,
membership of a national minority, property, birth, disability, age or sexual
orientation.4
1. Discussion
According to Eurostat, 2.4 million immigrants entered the EU from non-EU
countries in 2017 and the EU Member States granted citizenship to 825 thousand
3 EASO, Access to the Asylum Procedure, p. 5, https://www.easo.europa.eu/sites/default/
files/public/FAQs_0.pdf.
4 EASO, Practical Guide: Access to the Asylum Procedure, p. 9, https://www.easo.europa.eu/sites/
default/files/public/Practical-Guide1_0.pdf.
82 ANA-MARIA BOLBORICI
persons in 2017; 22.3 million people (4.4 %) of the 512.4 million people living in the
EU on 1 January 2018 were non-EU citizens.5
Results of a Eurobarometer survey published in April 2018 show that nearly
four in ten Europeans (38 %) think that immigration from outside the EU is more
of a problem than an opportunity, although this varies significantly by country.
Also, Eurostat reports that 37 million people in the EU were born in a third country
and migrants in an irregular situation are estimated to total between 1.8–3.9
million.6
The opinion polls reveal that a significant percentage of citizens belonging to
the Member of the European area no longer feel safe, considering that by this
exodus of refugees will have an influence on the status of politics within the
European area. The polls also reveal the collapse regarding the absence of a
convergent approach and in accordance with the different viewpoints and, in the
subsidiary, with the policies on migration and the legal trends about immigrants
refugee status and subsidiary protection status in the frame of the Member States
of the European Union. From 2015-2018, almost 2 million people received
international protection in the EU, many of them were children or young adults.
Based on those realities, it is obvious the concerns related to migration affected
different policies and as well practices in 2018 and 2019.
Although various civil society initiatives throughout the European Union aim
to support and welcome migrants, Europe’s population overall is concerned about
migration, even more so when it is considered ‘irregular migration’.7
At the same time, Europe’s population is misinformed when having to regard
that they can 'not have a clear projection about the incoming fluxes of migrants; for
example, they didn't know how many migrants there are in dangerous and
vulnerable situations and that need quick and specialized support.
This happens probably because the migratory patterns are often mixed, within
mixed migration flows, those who are in need of protection and those whose
reasons are not protection-related travel alongside each other, making use of the
same routes and means of transport.
All together, at the end of the day, these migrants arrive in a European state (if
they are lucky and have the chance to survive at that long and unsafe trip) and all
that the European citizens can see are huge waves of persons who live on the
streets and require help. This can explain why the opinion polls show that a
significant percentage of citizens belonging to the Member of the European area no
longer feel safe and protected in their own city/country. In this situation, it
5 Eurostat, Statistics Explained, Migration and migrant population statistics, March 2019,
https://ec.europa.eu/eurostat/statistics-explained/index.php/Migration_and_migrant_population_
statistics.
6 FRA, Asylum, visas, migration, borders and integration, p. 5, https://fra.europa.eu/sites/default/
files/fra_uploads/fra-2019-frr-chapter-6-asylum_en.pdf.
7 Ibidem.
International protection in the European Union… 83
becomes very important to identify those who are really in need of international
protection.
A person who may be in need of international protection is entitled to certain
rights regardless of whether they have explicitly applied for international
protection or not. One of these rights is the principle of non-refoulement and
applies to all persons regardless of whether their status has or has not been
formally determined. In this regard, Member States have the obligation to refrain
from returning individuals to any place where they may face persecution as well as
inhumane or degrading treatment or punishment, including torture, and even if
they are in an irregular migratory situation.8
Also important is to be assured of the effective access to the asylum procedure,
the right to information in a language which can be understood by the immigrants
concerning the entire process of application, so that; those people have access to an
interpreter, and the opportunity to communicate with organizations who provide
legal advice or counseling to applicants.
In line with the relevant international and European legal standards and
legislation all persons must be treated with respect for human dignity and in
accordance with fundamental and human rights and including the provision of
emergency healthcare and meeting basic needs.
Vulnerable persons, such as children and victims of human trafficking,
unaccompanied children, disabled people, elderly people, pregnant women, single
parents with children and so on, must be identified and referred to appropriate
procedures.
Another category of person who may also be in need of international
protection are the victims of human trafficking and to those people shall be given
access to the asylum procedure and must be properly informed of their right to
seek asylum.9
In accordance with the Geneva Convention and the Schengen Border Code,
applicants for international protection cannot be penalised on account of their
illegal entry, provided they present themselves without delay to the authorities.
During the investigation of false and fraudulent documents, the person may apply
for international protection and in this case, the police investigation shall be
stopped and the asylum procedure shall be initiated.10
The Common European Asylum System (CEAS) is a common system based on
the full and inclusive application of the Geneva Convention and aims to ensure fair
and human treatment of applicants for international protection, to harmonise
asylum systems and to reduce the differences between the Member States on the
8 EASO, Access to the Asylum Procedure, p. 12, https://www.easo.europa.eu/sites/default/files/
public/FAQs_0.pdf.
9 Idem, p. 7.
10 Idem, p. 19.
84 ANA-MARIA BOLBORICI
basis of binding legislation, as well as to strengthen practical cooperation between
national asylum administrations and the external dimension of asylum.11
EU asylum acquis communautaire provides for two forms of international
protection: refugee status and subsidiary protection status.
A person who seeks international protection (refugee status or subsidiary
protection status) is assimilated with asylum seekers. For many countries, the
distinction between a refugee and an asylum seeker is still ambiguous due to the
lack of a clear definition of an asylum seeker from the 1951 Refugee Convention.
For that reason, each country may set out the guidelines for granting asylum to
those in need of protection.12
According to the regulations, a refugee is a person who was forced to flee the
country of nationality, or in the case of stateless persons, the country of former
habitual residence, because of a well-founded fear of being persecuted for reasons
of race, religion, nationality, political opinion or membership of a particular social
group, and is unable or, owing to such fear, unwilling to return to it.13
The second option, subsidiary protection is granted to people who do not
qualify as refugees but are in need of international protection. Across the EU,
subsidiary protection is provided to those facing a real risk of serious harm if
returned to their countries, such as the death penalty or execution, torture,
inhuman or degrading treatment or punishment, a serious and individual threat
by reason of indiscriminate violence in situations of international or internal armed
conflict.14
An asylum seeker has been generally defined as a person who seeks asylum or
shelter in another country than his country of origin, for a series of reasons like
persecution, aggression, conflicts, human rights abuses, threats to life, etc., and
who is waiting for his application to be examined. After applying for asylum, this
asylum seeker may become a refugee or an economic migrant in the host country.
However, sometimes, an asylum seeker may not meet the Refugee Convention
criteria and may not be entitled to refugee status, but may suffer persecution if he
were to be returned to his country of origin. In this case, he may be granted “de
facto” legal status to be able to enjoy the protection of the asylum country. This
type of status was defined, under European law, in the form of subsidiary
protection.
Asylum applications include all persons who have lodged or have been
included in an application for international protection as a family member in the
reporting country during the reporting month. First-instance decisions include all
persons covered by decisions issued on granting EU-regulated international
protection status (refugee or subsidiary protection) following a first time or
11 Idem, p. 9.
12 Bacaian Livia Elena, op. cit, p. 19.
13 EASO, Access to ... op. cit, p. 8.
14 Ibidem.
International protection in the European Union… 85
repeated application for international protection in the first instance determination
process. The EU recognition rate includes EU-regulated forms of protection
(refugee status and subsidiary protection) and excludes national protection forms
(humanitarian reasons).15
An asylum seeker may be entitled to refugee or subsidiary protection status
depending on the resolution of his application.
So, the reality is that a great number of asylum seekers, who do not qualify as
refugees, fall under the second category and become persons eligible for subsidiary
protection. In international law, this type of obligation to protect people who do
not satisfy the 1951 Refugee Convention definition, are known under the name of
complementary protection.16
The European Union codifies complementary protection in the form of
subsidiary protection; in this regard, a person eligible for subsidiary protection is
defined in the Council Directive 2004/83/EC of 29 April 2004 on minimum
standards for the qualification and status of third-country nationals or stateless
persons as refugees or as persons who otherwise need international protection and
the content of the protection granted as follows: "a third-country national or
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".17
According to Article 15, serious harm, meaning the death penalty, execution,
torture, inhuman or degrading treatment, punishment, the threat to life or violence
in the event of armed conflict.
It can be concluded that in the European Union, the notion of subsidiary
protection is generous and applies to many categories of people, not only to those
who may be subjected to torture.
Conclusions
Related to the asylum situation, in the first nine months of 2019, more than
500,000 applications were lodged in the EU, which is a slight increase compared to
almost 497,000 in the same period of 2018. The main receiving countries in 2019 so
far are Germany, France, Spain, Greece and the United Kingdom, representing
more than 72% of the total. In 2018, the main countries of origin were Syria,
15 EUROPEAN ASYLUM SUPPORT OFFICE, Latest Asylum Trends, August 2019,
https://www.easo.europa.eu/latest-asylum-trends.
16 Bacaian Livia Elena, op. cit, p. 20.
17 Council Directive 2004/83/EC, https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:
2004:304:0012:0023:EN:PDF.
86 ANA-MARIA BOLBORICI
Afghanistan, and Iraq, and so far in 2019, they are Afghanistan, Syria, and
Venezuela.
In the first half of 2019, 96,800 positive decisions were issued in the EU. The
recognition rate for first-instance decisions issued between February and July 2019
was 34%.
The main countries of first entry such as Italy and Greece have the largest
number of existing records, France and Germany remain the main destination
countries of secondary movements with the largest number of hits registered.
So far in 2019, some 456, 000 applications for asylum have been lodged in the
EU, up by 10% compared to last year. Following a peak in July, applications were
reduced in August (5, 400) but remained more or less in line with earlier in the
year. Syrians, Afghans, and Venezuelans continued to lodge the most applications,
accounting for a quarter of all applications.
So far this year (2019), the majority of citizenship among the top 30 lodged
more applications than a year ago. In August 2019, the output of first-instance
authorities (about 46,000) returned to the levels of most other months in 2019, after
record numbers in July. Overall, the EU recognition rate for decisions issued at first
instance in the past six months was 34% - with applicants from Syria (85%), Yemen
(83%) and Eritrea (82%) having the highest EU-regulated recognition rate.
Venezuelans, Colombians and Afghans, all lodged far more applications than they
received decisions at first instance and so the number of pending cases for these
nationalities increased.18
In August 2019 around 55, 400 applications for international protection were
lodged in the EU, down by 12% from July, but broadly in line with most other
months so far this year. Syrians, Afghans, and Venezuelans continued to lodge the
most applications, but in lower numbers than a month earlier, in particular,
Venezuelans (- 22%).
Turkey, Iraq, Colombia, Pakistan, Iran, Albania, and Nigeria completed the list
of the top 10 countries of origin of applicants. With the exception of Turks and
Iranians, for whom applications were stable, all these citizenship groups lodged
fewer applications than a month earlier.19
The statistics show that some 3% of all applications were lodged by
self-claimed unaccompanied minors (UAMs) in August 2019; most self-claimed
UAMs were nationals of Afghanistan, followed at large distance by Syrians,
Somalis, Pakistanis, and Moroccans.
The number of UAMs among Afghan applicants increased over the past few
months. For citizenships, lodging at least 1, 000 total applications between January
and August 2019, the largest concentration of UAMs was observed among
18 EUROPEAN ASYLUM SUPPORT OFFICE, Latest Asylum Trends, 7 October 2019,
https://www.easo.europa.eu/latest-asylum-trends.
19 Ibidem.
International protection in the European Union… 87
nationals of Vietnam (12% out of all Vietnamese applicants), who preceded
Afghans (9%), Sudanese and Eritreans (8% each).20
It is obvious that the EU is set on implementing a Common European and
Asylum System, intended to converge the different asylum policies and legal
systems of Member States.
The continuous change and evolution in this area, starting with the
development of European norms on asylum and continuing with the different case
laws judged by the European Court of Justice and the European Court of Human
Rights is still challenging nowadays.
Concluding, everyone has the right to apply for international protection and
the right to asylum is recognised in the Geneva Convention, the Charter of
Fundamental Rights of the EU, and other international and European legal
instruments.
The question of whether the European Union will behave like a fortress or like
a host for these new migrants will still remain open to further discussions.
20 Ibidem.