Friday, 27 May 2016

Commission Proposes EASO Reform

In order to discuss the latest proposal for reform of EASO, it is necessary to first give a brief recap of the Agency’s origins and previous functions. EASO was established by the EU institutions in May 2010 via Regulation 439/2010, and has been in operation since 2011. 

Originally, the activities of EASO mainly focused on information gathering and exchange, encouraging and facilitating cooperation between the Member States as well as supporting the proper functioning of the Common European Asylum System (CEAS) in general. EASO fostered training and development regarding aspects of asylum and was able to provide extra assistance for Member States in need when their systems faced particular pressure – only when help was asked for.
Its practical functions aimed at increasing convergence between the Member States’ policies on asylum, mainly through this gathering and sharing of information. Its powers were limited to a degree as it had no power to affect decisions taken by Member States on particular cases of asylum, as is specifically mentioned in the original Regulation, and its involvement in this aspect of the procedures was little to none.
There was a clear emphasis on the independence of the Agency. It was to supply information and provide support in a transparent and unbiased way and be diligent in the performance of all duties. Yet it was also criticised for appearing to be too close to the Management Board, composed primarily of Member State representatives.

Though the role played by EASO has been analysed and criticised since its inception (for example: how transparent is it? What does it actually do? How does its work actually help in practice?); the final nail in the coffin, so to speak, came with the current refugee crisis. Due to the large numbers of refugees entering Europe, mainly through Italy and Greece, some questioned whether CEAS was beginning to collapse. 

The first casualty was the Dublin Regulation, followed by the suspension of Schengen. In the midst of the early days of the massive refugee flows in Greece and Italy, we weren’t quite sure where EASO was or what it was doing. It was at this time of intense asylum pressure that we were all surprised at the departure announcement of Dr. Robert Visser, then EASO’s Executive Director. Depending on your perspective, the timing was either unfortunate or perfect.

EASO continued to provide COI, gather data and carry on with its business, yet it became increasingly obvious that the pressure needing attention was of a more practical nature, owing to the sheer number of people requiring to be received and processed under the CEAS. The crisis emphasised the weaknesses of the CEAS in dealing with the several challenges presented by the Italy and Greece situations, further exacerbated by rising tensions in other Member State (such as Hungary) and the increasingly negative discourse and approaches seen all over the continent.

Part of the response has been a revisiting of the drawing board to look at the CEAS, and possibly revise it. Frans Timmermans, First Vice-President of the European Commission, has stated that “managing migration better requires actionon several fronts”, and one of these fronts is EASO.

On May 4th 2016, the Commission issued a press release entitled “Towards a sustainable and fair Common European Asylum System”, wherein it explained the idea behind the accompanying reform proposals. The press release focused on the need for changes, improvements, more efficiency and fairer processes throughout the Member States. This post will not explore the entire document, but focus on the EASO-related proposals. 

The proposed reform of EASO, as suggested by the Commission, essentially involves giving the Agency a much greater role to play in the context of the CEAS, including participation in the reformed Dublin procedure and the reformed EURODAC system on collecting data. Parallels have been drawn by Steve Peers between EASO’s expansion and the development of the European Border Guard. Again, the goals seem to be greater convergence, cooperation and assistance, aided by a proposed budget of a little under €365 million for the period 2017-2020, and a staff increase from 150 people to roughly 500. The proposals highlight the Commission’s intention to expand EASO’s role, especially in terms of actual operational and technical assistance in times of increased challenges to particular Member States.

All of these reform proposals are supplemented by a proposed change to EASO’s name, to become the European Union Agency for Asylum. This might finally eliminate Google’s confusion with the European Association for the Study of Obesity, also EASO!

Should the proposals be accepted, the Agency will be actively involved in several specific areas of the CEAS, including the operation of the reference key implemented through the Dublin Reform, and practical participation in the EURODAC system by taking fingerprints, collecting and processing personal data. Though the Commission claims that all proposed reforms are said to be compliant with the Charter of Fundamental Rights, this last reform proposal on the expansion of access to and processing of personal data might be a little at odds with Article 8 of the Charter. This Article ensures the protection of personal data yet through this new proposal, there is a significant increase in the data to be collected, stored and shared. The new rules apply to children as young as six years old and the information collected includes fingerprints, facial images, names, nationalities, details of birth, and all information relating to their asylum applications, relocation and removal. The information may be shared with third countries and the retention of this information has been increased for irregular border crossers and migrants from 18 months to five years. If these new rules are not wholly compatible with Article 8 of the Charter, this would mean that EASO, through its new tasks, would be violating this right. There is also the issue that, whilst EASO presently cannot be directly involved with the asylum processing and decision-making at national level, the proposals envisage a role for EASO in the early steps of application processing.

There are also a number of other proposed changes which deal with the relationship between the Agency and the Member States. Presently, the role played by the Member States regarding exchange of information is voluntary. Under the proposals, there is an obligation on Member States to cooperate with the Agency and to exchange information. While this duty may be considered a little harsh due to the forced cooperation, the Commission claims that this is necessary in order to achieve better convergence and also is in line with the principle of subsidiarity. The crisis showed that the Member States’ actions alone were not sufficient to prevent or deal with the crisis, hence the need for the EU level action.

Presently, EASO gathers information regarding COI and safe third countries and publishes general analysis and guidance. Under the proposed reform this function will be boosted, allowing the Agency to regularly review a Member State’s list of safe third countries, give information on countries that a Member State wishes to add to the list, and develop specific guidelines for best practices for the implementation of the CEAS. Essentially, in addition to the ability to support all aspects of the CEAS, the Agency will be able to provide specific advice tailored for individual Member States.

A much-needed improvement deals with EASO aiding Member States under pressure. Firstly, an expanded and comprehensive set of both operational and technical measures to give this assistance is being proposed.

Secondly, under the proposals the Agency will not have to wait for a Member State’s request for assistance. Although this request will still be an available option, the Agency would be able to provide practical support on its own initiative using an own initiative proposal. If this support proposal is rejected by the Member State, there will be the option for the Commission to intervene and force the assistance through the use of an implementing act. This promises to be a crucial change as it will allow the Agency to provide much more practical help, without having to rely on Member States’ requests for aid. From our end, we hope that this tool would also be used by EASO, and the Commission, to intervene in those situations where asylum-seekers or refugees are facing infringements of their fundamental or CEAS rights due to the inability or unwillingness of the Member State to effectively and efficiently handle a crisis or difficult situation.

Although these proposals are still relatively fresh and have been referred to as the “least contentious” of the stream of reform proposals released by the Commission, criticism and scepticism are already beginning to emerge. The New Federalist points out that even currently, EASO is “facing persistent difficulties to receive sufficient personnel from the Member States”, leading to the conclusion that “it remains unclear how the European Commission intends to increase Member State’s motivation to contribute to the CEAS”. Whilst this is a fair and valid observation, we also underline the importance of moving away from the emergency mind-set, based on reactive and short-term policies, to a more regular approach to asylum that focuses on processing applications in a way that is fair, effective and efficient. The current situation highlights the difficulties faced (or posed) by many Member States in complying with even the most basic norms of international refugee law, and of CEAS. We remain hopeful and optimistic that a stronger EASO, capable of prompt, efficient and targeted interventions remains a key component in the overall search for immediate as well as long-term solutions.

Do these proposals address any of the previous criticisms of the Agency? Certainly, the Agency’s recent activities in Italy and Greece practical effects of the Agency’s help should be seen through work in the Member States. However, it still doesn’t really deal with the issue of transparency, as mentioned before. EASO’s previous reports on their activities seemed to merely be a collection of points that did not really give a proper insight into what they actually did year to year. While they will be obliged to report to the Commission annually, with a view to spotting problems early and improving the quality of their functions, this is not a guarantee that the reports made by the Agency will be much of an improvement on those which came before. One can hope that with the overhaul and symbolic name changes that this aspect will change also. EASO does seem to be working towards improving transparency, as can be seen by the expansion of access to the COI portal.

It is excellent to see that the Commission recognises the need for change and is really attempting to ease the present burden and prevent future burden through its new proposals. Whether or not these will be sufficient or effective remains to be seen but before that analysis can begin, these proposals must first be adopted and implemented.

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