A MORE ACCEPTABLE SOLUTION: THE PROPOSED EUROPEAN UNION AGENCY OF ASYLUM AND REFUGEES.

Author:Katz, Sarah
 
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This Note details the improvements that should be made to a recent proposal submitted by a group of scholars to the European Parliament. The scholars have suggested that the European Union create an independent organization to process asylum applications and to deal with refugee issues in the European Union. This Note agrees with this central proposal, but fleshes out more details that are missing from this initial proposition. The five aspects of refugee processing are detailed in turn: (1) defining a refugee; (2) assigning responsibility for dealing with asylum claims; (3) reception conditions; (4) temporary protection; and (5) long-term residence conditions. The new agency should clarify the scope of the definition of a refugee in order to create a more uniform asylum application process. The Dublin Convention should be abandoned as the determining doctrine for which State will process asylum applications. Reception sites should be given financial assistance and European Union representatives should be placed at the sites. Once a refugee is granted temporary protection, he or she should have the opportunity to move freely for employment. Each State should be encouraged to submit a survey detailing its needs to the new agency so that the agency can determine the best fit for the relocation of individual refugees. This Note also suggests that the proposed agency create programs that would promote tolerance and acceptance of refugees, and further emphasizes the need to find a solution that will be accepted by all Member States of the European Union. This Note aims to advance this acceptance by highlighting the needs of the Member States as an important factor in refugee relocation determination.

CONTENTS I. INTRODUCTION II. PART I: A UNIFIED RESPONSE HAS PROVEN PROBLEMATIC BECAUSE INDIVIDUAL EU MEMBER STATES HAVE BEEN SEPARATELY HANDLING THE REFUGEE APPLICATION PROCESS A. International Refugee Law Provides Definitions that Form the Basis of the Discussion of the Refugee Crisis. B. Current EU Refugee Law and Its Inadequate State 1. Law Requires that the EU Practice Nonrefoulement 2. The Schengen Agreement and Its Effect on Asylum Claims C. The Tension between the EU Goals and EU Policies. III. PART II: THE EU'S PREVIOUS PROPOSED SOLUTIONS TO THE REFUGEE CRISIS HAVE BEEN UNSUCCESSFUL DUE TO FOCUS ON EXTERNALIZATION. A. Europe has Attempted to Deal with the Crisis in International Waters B. Europe has Suggested Establishing Off-Shore Processing Centers C. Europe has Sent the Refugees to Other Countries D. The Quotas Approach Externalized the Problem by Abandoning All Standards E. The EU's Current Unified Plan is Not Uniformly Implemented by All Member States IV. PART IIP PROPOSAL FOR A MORE COHESIVE PLAN A. A Uniform Definition of "Refugee" Will Remove the Disparate Granting of Refugee Status. B. Asylum Applications Should Not Be Processed Under the Policies of The Dublin Convention. C. Reception Facilities Should Focus on Speedy Processing by Working with National and EU Officials D. An Asylum Seeker Should Be Required to Remain in One Country Prior to Refugee Determination, but Should Be Afforded the Same Citizen Rights Once Temporary Protection is Granted E. The Proposed Agency Should Conduct a Campaign to Promote Tolerance of Long-Term Refugee Residence. F. The Proposed Agency May Need to Allocate Additional Funding to "Hotspot" Locations. V. CONCLUSION VI. CODA: RECENT DEVELOPMENTS I. INTRODUCTION

In 2015, the European Union (EU) received around one million asylum applications, making it the largest European refugee crisis since World War II. (1) The EU's current policy on asylum granting has proven problematic. The EU has committed itself to creating a united plan on asylum, (2) but the structure that is currently in place, the Common European Asylum System (CEAS), is not implemented uniformly by the Member States. This has caused great stress on the Union.

Many solutions have been proposed to address the problematic nature of processing asylum seekers within the EU, but most of these proposals are burden-shifting proposals. (3) The EU Member States have repeatedly attempted to shift the burden of processing and accepting refugees outside their sovereign borders. Rather than shifting the burden outside of the EU or to another Member State, the EU should form a cohesive plan that addresses how to share the burden. This plan should be devised so that it can be implemented relatively uniformly between Member States to relieve the current tension within the Union.

Recently, scholars have submitted a suggestion for such a unified response to the European Parliament. (4) These scholars have suggested in their submission, entitled "Enhancing the Common European Asylum System and Alternatives to Dublin," the creation of an independent organization that would centralize the refugee asylum determination process. (5) This scholarly submission focuses on the refugees' right to choose freely where they want to settle. (6) This Note agrees with the proposition that an independent organization should be created. However, this Note suggests that the European Parliament should not focus on refugee freedom, but rather on a multi-factored analysis of the EU member States' needs and obligations.

While the solution of creating an independent organization is a solid unifying suggestion, the emphasis on refugee free choice is not practical. One of the biggest reasons for the stress on the EU is that no State can afford to bear a disproportionate burden of refugee acceptance. Deferring to the preference of the refugees does not resolve this problem and is a solution that most States will not accept. This is not to say that the proposed agency should ignore refugee settlement preference entirely. Rather, refugee preference should only be a factor in a larger evaluation process. Resettlement should not be entirely up to the individual applicant.

This Note argues that a more acceptable evaluation process will be one where the Member States of the EU are able to submit statistics regarding their needs and ability to accommodate immigrants. Any uniform plan must use administrative coordination to balance economic interests, State sovereignty, and human-rights interests. To disregard any of these factors is to develop an unsustainable plan. This Note fleshes out a model plan for an independent organization that will effectively balance these factors. Part I discusses the standard of international and EU refugee law. Part II addresses why the EU's previous tactics of externalizing the "refugee problem" have failed. And Part III outlines a proposal for the step-by-step process under which the suggested unified EU body should process refugee applications.

  1. PART I: A UNIFIED RESPONSE HAS PROVEN PROBLEMATIC BECAUSE INDIVIDUAL EU MEMBER STATES HAVE BEEN SEPARATELY HANDLING THE REFUGEE APPLICATION PROCESS

    Both international and EU agreements acknowledge the importance of protecting refugees. The EU has committed itself to attacking this issue with a unified response. (7) But, immigration is an issue that individual States have handled. The tension between the unified goal and the nationalized policies has resulted in inefficient solutions to date. Each State does not see itself as a player in a unified front, but rather is looking out for its own citizens' interests. This is why any proposed unified plan must clearly lay out the roles of all Member States.

    1. International Refugee Law Provides Definitions that Form the Basis of the Discussion of the Refugee Crisis

      Before discussing refugee law in Europe, it is necessary to define the terms used in this field. The European system classifies migrants into two categories: economic migrants and asylum seekers. An "economic migrant" is a person who is relocating to a new country for the purpose of seeking a better life or more job opportunities. (8) An "asylum seeker" is a person who has fled persecution or conflict and is seeking international protection under the 1951 Refugee Convention. (9) Finally, "refugee" is the status granted to an individual after the proper authorities determine that the asylum seeker is indeed protected by the 1951 Convention. (10) Often the lines between these categories are blurred. The most important distinction between these two categories is that an economic migrant can be sent back to his or her country of origin, while a refugee cannot be sent back to his or her country of origin under the internationally accepted principle of non-refoulement. (11)

      International Refugee Law has taken its modern form through the 1951 United Nations Convention on Human Rights (Geneva Convention) and the 1967 Protocol Relating to the Status of Refugees. The 1951 Convention stated in Article 33 that "no Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." (12) This is the principle of nonrefoulement. (13) The EU Charter of Fundamental Rights is legally binding on all EU institutions and Member States in the same way that EU treaties are binding. (14) Article 18 of the Charter says that "the right to asylum shall be guaranteed with respect for the rules of the Geneva Convention." (15) This means that all EU Member States are required not to return an asylum seeker to a life-threatening situation.

    2. Current EU Refugee Law and Its Inadequate State

      1. Law Requires that the EU Practice Nonrefoulement

        The Charter of Fundamental Rights of the EU, which is legally binding upon the Member States, provides for (1) the right to asylum, and (2) prohibits refoulement. (16)

        Even though the Charter provides for the right to asylum, it does not provide a system that facilitates asylum seekers' entry to the EU. (17) Therefore, the EU is only obliged to protect asylum...

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