Especially Vulnerable Subjects and Categories in the Context of European Migration: Theoretical Regulatory Challenges

While vulnerability and migration are boundary concepts, they have been employed as if they were somewhat neutral and univocal. Based on the umbrella theory of the vulnerability turn, the specialist doctrine has focused its critical analyses on the legal-political dimensions of the different vulnerable subjects and groups. However, migrant vulnerability has a unique impact on the regulatory field of asylum, especially given its ambiguity and lack of legislative harmonisation across EU Member States. A review of the mechanisms for identifying and protecting migrant vulnerability can provide regulatory evidence regarding the different phases of the Common European Asylum System, which in turn can lead to proposals for its reform. This study will analyse the complex and questionable use of the category of ‘vulnerable migrant’ in the main international instruments of legal protection when applied to asylum seekers. It will then present a critical comparative analysis of the national and EU asylum framework.

Asylum in the EU: One of the Many Faces of Rule of Law Backsliding?

EU values – Rule of law backsliding – Rule of law and fundamental rights interrelation – Refugee protection – Common European Asylum System – Implementation gap in asylum – Lack of fair responsibility sharing in asylum – Structural deficiencies in national asylum systems – Defiance of asylum obligations and the duty of sincere cooperation – Systemic fundamental rights violations – Upholding the rule of law – European Asylum System redesign – Systemic infringement actions – Rule of law monitoring

Fences, Fiction, and the Magic Mountain

How to allocate responsibility for refugee protection between states forms a salient question in international refugee law. Explicit principles are lacking, yet there is a growing consensus that the issue of responsibility-sharing relates to the system’s most salient deficiencies. Within Europe, the sharing of responsibility for refugees is equally contested. Explicit legal rules exist within the Common European Asylum System (CEAS) of the EU on the one hand, and the European Convention of Human Rights (ECHR) on the other. The chapter explores the schemes of responsibility-sharing that underlie these two frameworks, the scheme of layered responsibility under the ECHR, and the scheme of alternative responsibility under the Dublin legislation of the CEAS. It discusses the respective implications for the regulation of borders and safeguarding of rights. It points to the role of individual procedural rights arguing that lessons can be learned from the European case which can also apply to the international level.

Credibility Assessment in Asylum Claims Based on Sexual Orientation by the Greek Asylum Service: A Deep-Rooted Culture of Disbelief

The aim of this article is to describe and analyze the main practices that the Greek Asylum Service applies to assess credibility in asylum claims based on sexual orientation. The analysis is based on a survey of 60 cases (interviews and first instance decisions). According to the results of the survey, the practices used could be divided into two categories. On the one hand, practices that do not conform with refugee law, the Common European Asylum System, and human rights standards, such as questions around sexual practices of the asylum seekers, stereotyped expectations about applicants’ behavior and knowledge, and arbitrary assessments lacking any legal reasoning. On the other hand, practices that, at first sight, comply with international and European guidelines for credibility assessment but are based on an essentialist understanding of lesbian, gay, and bisexual identity. According to the research, applicants are expected to have passed through a hard process of self-realization which has to be accompanied, by default, by feelings of difference, shame, and suffering. In the article, the author critically reflects on the practices applied, concluding that this notion of sexual orientation as innate and defining one’s identity, fails to take into account the intersections of gender, class, ethnicity, and race, and could lead to unjust judgments.

The Disruptive Regularisation Mechanism in the Spanish Law that Challenges the Reform of the Common European Asylum System

The debate regarding the extent of EU Member States competences in immigrant integration policies was paused with the Treaty of Lisbon. European institutions took an active role in integration but did not mandate a communal approach. Consequently, each Member State instigated its own policies, which led to a wide diversity of regulations. The policy adopted by Spain stands out because of its particular approach to integration policies, which in this case are applicable to regular and irregular immigrants. A remarkable feature of the migration law in Spain is that it contains a regularisation mechanism for irregular immigrants that does not require them to have a visa in order to obtain the status of temporary residency. This mechanism is known as arraigo social (social ties). In these cases, access to regularity depends on the level of social integration that the immigrant can prove to have achieved. This article analyses the statistics on the use of this mechanism in Spain and discusses whether it could offer a path to asylum seekers looking for an official response after several years of waiting in the EU.

Toward a Gender-Sensitive Securitization of the Common European Asylum System

EU Member States may legally designate a country as a Safe Country of Origin when human rights and democratic standards are generally respected. For nationals of these countries, asylum claims are treated in an accelerated way, the underlying objective of the “safe country” designation being to facilitate the rapid return of unsuccessful claimants to their country of origin. The concept of “safe country” was initially blind to gender-based violence. Yet, in the reform of the Common European Asylum System (CEAS), which began in 2016, the European Commission proposed two changes: first, that a common list of “safe countries” should be applied in all Member States, and second, that this concept should be interpreted in a “gender-sensitive” manner. In consequence, the generalization of a policy that has been documented as largely detrimental to asylum seekers has been accompanied by the development of special guarantees for LGBTI+ asylum seekers. In light of this, there is a need to examine the impact of “safe country” practices on LGBTI+ claimants and to investigate the extent to which the securitization of European borders is compatible with LGBTI+ inclusion. Based on a qualitative document analysis of EU “safe country” policies and on interviews with organizations supporting LGBTI+ asylum seekers, this article shows that despite the implementation of gender-sensitive safeguards, LGBTI+ asylum seekers are particularly affected by “safe country” practices. These practices permeate European asylum systems beyond the application of official lists, depriving many LGBTI+ asylum seekers of their right to have their protection claims fairly assessed.

COMMON EUROPEAN ASYLUM SYSTEM: THE CAUSES OF THE CRISIS AND ITS CONSEQUENCES FOR EUROPEAN CONSTITUTIONALISM

The massive influx of refugees from the Middle East in 2015 caused a crisis in the Common European Asylum System, which provoked a European constitutional crisis. This review presents three articles that formulate the existing problems and the risks they cause for the EU, as well as analyzing their causes and prerequisites.

Internationaler Schutz im Falle extremer Armut

The book critically examines the juxtaposition of refugees eligible for admission or subsidiary protection and so-called poverty or economic refugees allegedly ineligible for protection. With regard to the question of whether international protection should be granted in cases of extreme poverty on the basis of the Common European Asylum System, the role of economic, social and cultural rights as well as the case law of the two European courts are examined in particular. Furthermore, existing challenges are identified and a proposal for a solution that closes protection gaps in the sense of a more far-reaching harmonisation of the European system is presented.

The Policy and Guidance

The contours of international protection in EU member states are mainly determined by three elements: the 1951 Refugee Convention and the EU Common European Asylum System (CEAS), alongside international human rights law, including the 1950 ECHR (Chap. 10.1007/978-3-030-69441-8_3). While Germany and Italy are bound by the CEAS recast instruments, the UK has remained only bound by the 2003 Reception Directive, 2004 Qualification Directive and 2005 Procedures Directive. Yet, this and other type of legislative options do not, in themselves, necessarily produce considerable variations across the EU (Querton 2019), as many other factors contribute to different degrees of policy variation between EU member states. Amongst these factors, it is worth considering in particular geographical location, political context and internal governance structure, further contextualised by the statistics available.