The first phase in establishing a common European asylum system is almost complete. The 1997 Treaty of Amsterdam set the legal framework. It prescribed legally binding instruments for refugee protection and set minimum standards in a number of areas. The purpose was to harmonize national asylum systems. A 1999 European Council meeting in Tampere, Finland, set the political agenda to inform this legislative process. European Union member states agreed at the highest levels to work towards a common asylum system. They confirmed that the system should be based on absolute respect for the right to seek asylum and full application of the 1951 UN Refugee Convention.

The first phase – Instruments on minimum standards adopted

The deadline for adoption of the first legally binding instruments was set for five years after entry into force of the Treaty of Amsterdam, a period which expired at the end of April 2004. This deadline coincided with the enlargement of the European Union on 1 May 2005, when 10 new states joined as members. The legislation sets minimum standards for a European Union-wide temporary-protection regime; reception conditions for asylum seekers; and eligibility criteria for those given the status of refugees and others in need of international protection. Political agreement has been reached on minimum standards for procedures to determine or withdraw refugee status, though this is pending final consultations with the European Parliament.

Regulations have been established to determine which state would be responsible for examining an asylum application lodged in a European Union member state by a third-country national – the so-called Dublin II Regulation – and a fingerprints database has been set up. A European Refugee Fund and other financial instruments supporting European Union asylum systems and initiatives have been established. Migration legislation adopted in this period also contains provisions relevant to asylum including inter alia, the directive on family reunification and migration control measures, such as carriers' sanctions and measures against trafficking and smuggling.

In principle, European asylum legislation is applicable to all member states of the Union. However, the United Kingdom and Ireland have only acceded to specific instruments, while Denmark has opted out of all asylum-related mechanisms.

The outcome of the first phase is mixed. The adopted legislation reflects some best practice in refugee protection, such as recognition of persecution by non-state actors. It also grants subsidiary protection status to individuals who do not fall within the definition of refugees in the 1951 UN Refugee Convention but are protected against removal by international human rights law. Furthermore, the legislation obliges member states to provide a minimum standard of support to asylum seekers during the determination procedure, including healthcare, accommodation and other benefits.

However, member states found it particularly difficult to agree on procedures to determine just who should qualify for international protection and what rights they should enjoy. Most member states sought to maintain their existing asylum systems, as well as accommodate the conflicting interests arising in the post-11 September climate. The result often was agreement at the level of the lowest common denominator.

In this context, the European Union's draft Asylum Procedures Directive has been severely criticised by the European Parliament, NGOs and UNHCR for falling short of international standards in refugee and human rights law and best practice. Indeed, questions have been raised about their ability to set a framework which could lead to a common European asylum system.

The 1951 UN Refugee Convention and the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms are considered part of the acquis to which all European Union members should conform. The Charter of Fundamental Rights of the European Union of 2000, although not yet legally binding, also enshrines the right to asylum and the prohibition of both the collective expulsion of aliens and refoulement.

The second phase – The Hague Programme

The elements of the second phase of a common European asylum system were prescribed in the Hague Council in November 2004. The Hague Programme, a plan to develop the European Union into an area of freedom, security and justice, sets out a political agenda for the development of asylum law and policy. It reiterates that the common asylum system should be based on absolute respect for the right to seek asylum.

An extensive evaluation by the European Commission of the instruments related to asylum is expected by 2007. Still, the way in which the instruments are being transposed in at least some member states seems to confirm the fears of UNHCR and others that the agreed minimum standards may become a maximum to be achieved. Given the extensive and severe criticism encountered in relation to at least some of the legislation, future progress may depend on the courts, in particular the European Court of Justice.

Following adoption by the Hague Council of the Directive on Family Reunification, the European Parliament brought an action against the Council before the European Court of Justice in December 2003. It claimed that fundamental rights had been breached by the directive. It is conceivable that the European Parliament may do the same in relation to other instruments in future. Questions and cases may be directed towards the court from national institutions as well.

The stated aim of the second phase is the establishment of a common asylum procedure and a uniform status for those granted protection, based on the full and inclusive application of the 1951 UN Refugee Convention and other relevant treaties. The second-phase instruments are to be adopted by 2010, after evaluation by 2007 of the legal instruments adopted in the first phase. The establishment of appropriate structures involving the national asylum services of the member states would facilitate cooperation. While separate national asylum systems may be maintained, the Hague Programme also calls for a study on the possibility of joint processing of asylum applications within the Union.

The draft Constitutional Treaty for Europe should provide the legal basis for the development of the common European asylum system. The Charter of Fundamental Rights would also be incorporated, making its standards binding on European Union member states. It will, however, remain to be seen what happens to the draft Constitutional Treaty following its rejection in France and the Netherlands.

Cooperation with third countries

While steps are taken towards completing the European Union asylum system, cooperation on asylum and migration matters with third countries has become a high priority. The Hague Programme acknowledges the need for the European Union to contribute in a spirit of shared responsibility to a more accessible, equitable and effective international protection system in partnership with third countries. Regional protection programmes, resettlement, return standards and readmission policies are to be strengthened in the coming years. Readmission agreements, maritime border controls and capacity-building in regions of origin and transit are current priorities of the Union in the field of asylum and migration. In this context – and more controversially – the Hague Programme also seeks to look at the implications of processing of asylum applications outside the European Union.

The interest in protection in regions of origin could serve to make additional resources available to countries that are carrying particularly heavy burdens in hosting refugees. In addition, there has been increasing interest in resettlement as a durable solution and tool for international protection, which is a positive development when not seen as a substitute for the grant of protection to spontaneous arrivals. However, in view of the challenges it faces in developing its asylum system, Europe will have to show that its cooperation with third countries is based on burden-sharing, not burden-shifting, and that it is able and willing to establish a common European asylum system that is in line with international standards and best practice.

The way forward

Box 2.2 Outsourcing refugee protection: extraterritorial processing and the future of the refugee regime