EASO, EU law and life in the margins
Published: 1 Sep 2016
Contributed by Helena Spector, recent graduate in Social Anthropology at the University of Cambridge. She has worked with immigrants and refugees in the UK and South Africa and has conducted research into global patterns of human mobility.
A crisis is only so good as the response it engenders. By this token, we must give credence to the refugee crisis, although it might not be the one we had come to expect. National boundaries stand strong while EU law, judicial process, and asylum policy have all been steadily eroded, heralded in by the EU’s deal with Turkey and a re-hashed Dublin settlement. Recent changes to the operations and the mandate of the European Asylum Support Office (EASO) demonstrate that in dealing with its surplus, Europe is equally as capable as operating in the margins as those who reach her shores.
The EU established EASO in May 2010, and it has been in operation since 2011. Its primary role is to support practical cooperation between other EU bodies in implementing the Common European Asylum System (CEAR). In practical terms this means facilitating the exchange of information pertaining to issues of asylum, including data on the flows of asylum seekers into and within Europe, country of origin information, and the application of EU asylum law within the domestic courts of Member States.
Prior to the reorganisation of EASO, the institution was also able to provide extra assistance for Member States when such support was needed. The capacity to intervene was tightly curbed however, with EASO unable to affect decisions taken by Member States on cases of asylum, and actual involvement in the processing of asylum applications was little to none.
The EU-Turkey refugee deal struck on the 7 March 2016 demanded a reconstitution of EU institutional machinery in line with the new Dublin settlement. Both EASO and the European Border Guard have undergone reform to allow them to play a greater role in coordinating national administrations in the effort to return asylum seekers arriving in Greece to Turkey. This process has been encapsulated under the heading “Orbanisation”: the entrenchment of Hungary’s border policy within EU-wide policy, whereby the maintenance of external borders via the broad-brush use of detention becomes the norm, justified through Schengen rhetoric. The new legislative ambit awarded to EASO is directly related to the ever-more draconian ways in which the EU deals with the unprecedented flow of asylum seekers attempting to cross its borders, changes that are pushing CEAR closer and closer to collapse. In a 4 May press-release Frans Timmermans, the First Vice President of the European Commission, has stated that “managing migration better requires action on several fronts” and recent changes make it clear that one of these fortified fronts is EASO.
This press release, entitled “Towards a sustainable and fair Common European Asylum System” hints at the greater role EASO is to play in Europe. The most significant changes are made to the size and scope of EASO. There is a planned staff increase from 150 to 500 personnel, and EASO can now deploy teams to intervene in the asylum process at hotspots across the EU.
Such on-the-ground involvement is bifurcated: EASO will provide “migration management support teams” for the identification and screening processes of asylum seekers in line with the move to centralise the Dublin System, and EASO personnel will play a role in the processing of asylum claims where necessary. On the one hand, the deployment of personnel and support staff, on the other, assistance and intervention in asylum protocol itself. Deployment and intervention become two sides of the same coin – one that may well be the new currency of Fortress Europe.
There are important vagaries that need to be addressed here: Under what legislation does a reinforced EASO operate? Who precisely can interfere on the ground of EU nation states? And what is its mandate to implementing Dublin III within national borders?
First, deployment. The terms of EASO personnel administering support seem unproblematic: under the European Commission’s proposal for EASO expansion, Article 21 enables the deployment of support teams to Member States experiencing “heavy and urgent demands on it asylum or reception centres”. This does not, in fact, depart from EASO’s earlier mandate. The change comes a sentence later. Under Article 22, such teams can now be deployed either at the request of the Member State or by its “own initiative”, meaning that EASO can intervene in asylum proceedings without any direct say-so by the Member State.
The practical interpretations of this change seem concerning. EASO in theory should only deploy “asylum support teams from a reserve of experts composed of a minimum of 500 experts from Member States and experts seconded by the Agency [EASO]” (European Commission, 2016). However, an EASO spokesperson confirmed that it has contracted G4S, a private global security company, to reinforce security inside the refugee holding centers on the Greek islands (Lesvos lawyers sue EASO , 2016). The world’s largest private security contractor, G4S has been involved in a string on recent controversies involving allegations of exploiting refugee-detainee labour in prisons, the use of inappropriate techniques to restrain youngsters in child custodial institutions and the bullying of vulnerable minors by staff in a UK-based detention facility. Given this record, human rights groups and lawyers have raised concerns about the treatment of asylum seekers in Greek hotspots, concerns that have not been assuaged by the use of G4S personnel to impede access to refugees at the holding centers. It is a clever move: without allowing independent reviews into the camps to inspect the precise role of G4S, it is impossible to determine what precisely their role there is. An EASO spokesperson declined from publicly disclosing the financial details of the directly appointed contract with G4S due to “commercial sensitivities” (New Security on Greek Islands Reduces Access, 2016). It is not only the degree of obfuscation that seems concerning. It is entirely unclear under what mandate G4S has been deployed on the Greek islands, and what steps it is taking to ensure the protection of large numbers of minors and vulnerable individuals within the G4S-operated camps.
Secondly, intervention. The major manifestation of EASO’s new interventionist mandate is its involvement in the returns from Greece to Turkey. Under the terms of the March deal, Greek authorities decide whether to deport an asylum-seeker to Turkey based on recommendations from EASO, which was tasked with conducting initial interviews with applicants. Termed a“pre-registration exercise for international protection”, this is the first stage in the asylum process for those arriving in Greece and is a mandatory step in ensuring that Dublin III conforms to international law. Asylum seekers may only be returned to Turkey if their application is “unfounded” – rejected on its merits – or “inadmissible” – dismissed on grounds that Turkey is either a “first country of asylum” or “safe third country”. Although the on-the-ground pre-registration came to an end earlier this month, the scheme is still in place and appointments are conducted remotely.
So far, so good. However, the introduction of the pre-registration exercise has transformed the Greek camps from processing centers, where migrants would be registered and moved on, to full-scale detention facilities. According to the European Convention on Human Rights, there are only two grounds upon which an asylum seeker may be detained. The first permits detention of a person “to prevent his effecting an unauthorised entry into the country”. The second permits detention to be used “against whom action is being taken with a view to deportation or extradition”. Concerning the former, detention is only legal if a decision on an application is made within four weeks. Concerning the latter, detention with a view to deportation is justified only if deportation or extradition proceedings are in progress.
If we return to the situation in Greece, it is clear that EASO is carrying out detention on either uncertain or downright unjustified legal bases. Firstly, arrivals are subject to universal and automatic detention, regardless of the Convention clauses listed above. Secondly, a recent report from the Samos hotspot has described that, prior to July, only a few dozen asylum claims had been processed, despite the fact that registration as a grounds of detention was supposed to have begun months earlier (Samos: Inside Greece’s “nightmare” EU hotspot, 2016) Any applicants from May and early June would have far exceeded their four-week long legal detention. Moreover, Syrians have been given priority in many Greek camps. This means citizens from elsewhere, who make up a vast portion of Greek arrivals – Afghanis, Iraqis, Eritreans, Pakistanis – have not yet had their interviews with EASO, and thus have not come close to filing a formal asylum application. Many have been held in such conditions for several months. In these circumstances, there are no legal bases for detention under international law. We thus see the arbitrary and illegal detention of asylum seekers and migrants across Greek hotspots, where other options, including open camps with adequate services and the appropriate level of security, do not appear to have been considered.
There are further issues with EASO’s intervention via “pre-registration exercises”. Legislative compliance hinges on the notion that, prior to their applications being deemed unfounded or inadmissible, migrants are given the effective opportunity to apply for asylum, as the Directive (and ECHR case law) requires. Deportations can only proceed on a case-by-case basis, logically requiring that the asylum case be first opened. And yet it is impossible to know whether this right is being adhered to amid reports of obstruction by EASO within Greece. The Lawyers Association of Mitillini is suing EASO for prohibiting their access to specific areas of the holding centres that host the EASO offices and the asylum proceedings, effectively making it impossible to determine whether the EASO is processing each case or staging mass deportations (New Security on Greek Islands Reduces Access, 2016). Preventing asylum seekers access legal services is a clear breach of international law, and the lawyers in Lesvos have accused the EASO of deliberately compromising the rights of their detainees. The fact that EASO hired a private security contractor that limits access to the holding centers on Lesvos has done little to alleviate concerns of malpractice.
To carry this point to its logical conclusion, problems with the transparency of decision-making lead to problems with challenging such decisions. Within the Greek hotspots, this includes decisions taken either on asylum applications and decisions made during the pre-registration exercise. The main legal mechanism for challenging any rulings should be asylum seekers raising appeals via the Greek courts. Those courts could then refer questions to the Court of Justice of the European Union (CJEU) about EU asylum law. Alternatively, if asylum seekers cannot effectively access the Greek system they could raise complains to the European Court of Human Rights. However, with restricted access to EASO-managed hotspots, which has prevented legal representation and independent observers entering the sites, many detainees are without lawyers and without an understanding of due process. At best, EASO is implicated in failing to provide asylum seekers with sufficient legal services and information, as is their right, to bring their appeals to court. In this scenario, the possibility that an unrepresented detainee could traverse the Greek legal system to bring an appeal, a right even EASO’s new protocol cannot circumnavigate, seems remote. At worst, EASO is responsible for impeding access to the Greek courts, a direct violation of Article 16 of the 1951 Convention (refugees are to be granted equal access to the courts).
Through two major grounds, deployment and intervention, a reformed EASO has acted to enforce a draconian EU immigration policy on the one hand and has taken away legally enshrined rights with the other. Certain aspects of the domestic, EU and international laws governing asylum applications and conditions for detention are certainly complex and often contradictory. The contravention of the laws surrounding detention and due process are nevertheless unjustified. EASO’s governing figures should remind themselves of the advice their on-the-ground representatives might offer to migrants: ignorantia juris non excusat. Ignorance of the law excuses no one.
Over thirty years ago the postcolonial theorist Homi Bhabha suggested that post-Enlightenment Europe was tethered to, not confronted by, its dark reflection, distorting its outline and breaching its boundaries. Precisely in this vein, it is not the confrontation with refugees on the shores of Greece that challenges European sovereignty, but rather the failure of the EU Member States to unilaterally recognise their legally binding obligations; the failure to accept how the EU states are tethered to the rest of the world, and how they are tethered to each other. At a time when the EU is facing border-inspired threats on both eastern and western frontiers, it is critical that the rule of law is sustained and consolidated. EASO was established with the explicit intent of monitoring the application of EU asylum law within domestic courts; EASO could now be blocking access to these courts, and contravening the legal frameworks through which individuals might get there. Moreover, the failure of EASO to adhere to its own legal framework hardly works to bolster the legitimacy of the Common European Asylum System. If this is a race to the bottom for refugee policy, just how far down this rabbit hole are we willing to go?
Bibliography
European Commission (2016). Proposal for a regulation of the European Parliament and of the Council on the European Union Agency for Asylum and repealing Regulation (EU) No 439/2010. Retrieved on the 2nd August 2016, fromhttps://ec.europa.eu/transparency/regdoc/rep/1/2016/EN/1-2016-271-EN-F1-1.PDF