Practical cooperation in the European asylum policy has evolved from mere information exchange to the institutionalisation of a plethora of activities coordinated by an EU agency, the European Asylum Support Office. The ‘asylum crisis’ has further spurred forms of joint processing of asylum applications, while the proposed Regulation on a European Union Agency on Asylum foresees enhancement of the agency’s mandate, including through incorporating monitoring and assessment tasks.
By Evangelia (Lilian) Tsourdi
The European Asylum Support Office (EASO), an EU agency, is gaining prominence. Its role is increasingly perceived as crucial in overcoming the implementation challenges of the asylum policy faced by the Member States.
The initial design of the EU asylum policy foresaw that Member States would use the Common European Asylum System (CEAS), largely through deploying their own resources. Practical cooperation between Member States basically consisted of information exchange through administrative networks and ad hoc projects, and was envisaged to play a marginal support role in the implementation of the policy.
However, these collaborative efforts soon met their limits in boosting Member States’ capacity to implement the asylum policy. Their inadequacy to live up to the implementation challenges led to an institutionalisation push, which came to fruition in 2010 through the adoption of the EASO founding regulation.
Shifts in the administration modes of the asylum policy
Under its current mandate, EASO undertakes activities under three broad categories: training and quality; information and analysis; and operational support. The agency’s mandate excludes both direct and indirect powers in relation to decision making on individual applications for international protection. It also excludes the adoption of legally binding documents that would instruct Member States about the grant or refusal of such applications.
I have previously analysed the evolution of EASO’s operational support activities, focusing on the trends revealed by the development of operational activities. I retraced the evolution from small-scale deployments of experts providing advice to relevant ministry departments and conducting training, to emerging forms of joint processing of asylum applications. In Greece, deployed experts undertake admissibility interviews and submit opinions that, despite being advisory and non-binding on national authorities, entail administrative discretion. I conclude that these developments point to the emergence of an increasingly integrated administration in the field of asylum. This new setting brings novel constitutional and administrative (procedural) challenges.
Beyond operational support, the evolving nature of the other areas of agency activity point to shifts in the administration modes of the asylum policy, as exemplified by the Commission proposal for a Regulation on a European Union Agency on Asylum (EUAA). A characteristic example is country of origin information (COI). EASO currently coordinates networks of national administrators in this area and collects, disseminates and produces COI. Its COI analysis is not binding, Member States can treat it as one of the available sources. The proposed Regulation foresees a novel role for the EUAA through a structured procedure whereby the revamped agency will, together with Member State experts, develop a common analysis, to be understood practically as a jointly agreed position on the situation in specific countries of origin. The Executive Director will then submit it, after consultation with the Commission, to the Management Board for endorsement. Once endorsed, Member States will be required to take this list into account. This is to be coupled with a new obligation of Member States to provide monthly detailed information on the number of decisions granting or refusing international protection, as well as specific statistics on the cases where the common analysis was not followed and the reasons for not following it.
Another innovation of the Commission proposal for a EUAA is an additional monitoring and assessment role for the agency. The EUAA is expected to monitor the implementation and assess all aspects of the CEAS in Member States; monitor compliance by Member States with operational standards, indicators, guidelines and best practices on asylum; and verify asylum and reception systems, including staffing and financial resources. Particular emphasis would be placed on Member State capacity to meet challenges from disproportionate pressure on their asylum and reception systems. For now, it is envisaged that information would come mainly through the Member States themselves, but that the agency would have the capacity to conduct on-site visits and case sampling.
This monitoring exercise would conclude with the formal adoption of a report by the Management Board, and its transmission to the Commission. Next, the Management Board would adopt the recommendations on this basis and the concerned Member State would need to draw up an action plan within one month and to report to the agency on its implementation within three months, and every six months thereafter. The agency would report regularly to the Commission on the implementation of this action plan. The proposed methodology is suggestive of the Open Method of Coordination, with adoption of action plans to implement national-specific recommendations and follow-up monitoring by the agency.
The nature of practical cooperation in the EU asylum policy is constantly evolving. While an enhanced operational role points to the emergence of joint implementation patterns, other areas of the agency’s (envisaged) mandate point to further trends. The common analysis of COI would enhance the agency’s steering potential and could increase the harmonisation of practices. However, given its impact, the objectivity and wealth of information contained, as well as the quality of the analysis, becomes crucial. If this provision remains intact after the negotiations between the co-legislators, the common analysis would seem to possess something of a ‘semi-binding’ quality, with national administrations regularly reporting on their decision making patterns and having to justify their choice not to follow the common analysis to an EU agency. The additional monitoring role would profoundly alter the character of the agency’s functions. The EUAA would support Member States in implementing and assess their performance in doing so. This would shift the balance between Member States and the agency, and alter the purpose of information exchange between them. It would entail ‘outsourcing’ part of the Commission’s monitoring mandate to the EUAA. While the legislative text is still under negotiation, one thing is becoming increasingly clear: practical cooperation has passed from the margins to the center of the asylum policy stage.
Lilian Tsourdi is a Max Weber Fellow at the Law Department of the European University Institute (EUI), and an adjunct professor at the School of Advanced Studies of the University of London and Sciences Po Paris.