By Bernd Parusel
This article draws from the situation of Afghan asylum seekers in Europe to identify two shortcomings and injustices of the common asylum policy of the EU: firstly, the lack of a harmonised decision-making practice in asylum cases; and secondly, the problem of the EU Member States’ unrealistic expectations regarding the return of rejected applicants to their countries of origin. Over the past ten years, almost 580,000 Afghan nationals have applied for asylum in the European Union. Afghanistan was the second most important country of origin among asylum seekers in the EU, after Syria. The way the EU Member States deal with them is subject to much controversy. Despite a worsening security situation in their country of origin, on average more than half of all asylum claims by Afghans are rejected. They are also confronted with severe injustices as their recognition rates vary greatly, depending on where in the EU their claims are examined. Among the many who are rejected, a majority risk ending up in protracted legal and social limbo situations as they are required to leave the EU, but are in reality rarely returned to their country of origin.
In the current political discussion on reforms of the Common European Asylum System (CEAS), issues such as a fairer sharing of responsibilities among the EU Member States for the intake of asylum seekers, a more uniform asylum decision-making practice and a more credible return policy play a prominent role (Parusel and Schneider 2018). The CEAS sets out a series of legal provisions which regulate the determination of the Member State responsible for examining an asylum application and set out minimum standards for the reception of asylum seekers and asylum procedures, as well as criteria for the recognition of non-EU nationals as refugees or persons in need of subsidiary protection. The CEAS is supplemented by further legal measures that go beyond asylum in the narrow sense, such as common basic rules for the return of persons obliged to leave the EU.
The problems Afghan asylum seekers face in the EU are illustrative of some severe shortcomings of the CEAS and related instruments. In the absence of an EU-wide distribution system for asylum seekers, most of the roughly 580,000 Afghan asylum seekers who reached the EU during the period from 2009 to 2018 lodged their claims in Germany (226,000), Hungary (69,000), Sweden (64,000) and Austria (47,000). These numbers reflect, to some extent, a choice by the applicants themselves, but they can also be the result of migrants being detected and forced to halt their journey en route to other destinations. Some countries (such as Malta, Estonia, Portugal, Latvia, and the Czech Republic) counted less than 200 Afghan applicants during the same period (Eurostat 2019a).
Asylum adjudication in the EU – a lottery?
According to many institutions and observers, the security situation in Afghanistan has over recent years deteriorated rather than improved (EASO 2018), and UNHCR recently confirmed that Afghanistan was the second largest source country of refugees worldwide, with 5.1 million people displaced, either internally or as refugees or asylum-seekers (UNHCR 2019: 7).
Despite this development, the prospects of Afghans who have arrived in Europe to seek asylum have been decreasing. In 2015, the EU Member States granted around 67 percent of all Afghan asylum seekers refugee status, subsidiary protection, or a right to stay on humanitarian grounds. This EU-wide, average protection rate decreased to 57 percent in 2016 and roughly 47 percent in 2017 and 2018 (Eurostat 2019b).
Whether or not an applicant from Afghanistan receives protection also varies greatly from one Member State to another. In Germany, the main receiving country in the EU, the protection rate for Afghans was 43.4 percent in 2018. By contrast, it was below ten percent in Croatia and Bulgaria, around 20 percent in Denmark, and 32 percent in Sweden. Much more generous were France (67.2 percent), Greece (74.6), Spain (85.7), and Italy (87.5). In Ireland, Luxemburg and the non-EU country Switzerland, the protection rate for Afghans was above 90 percent.
Given the fact that the EU has worked towards harmonising national asylum decision-making standards for almost two decades, these differences are striking. In 1999, the European Council in Tampere agreed on the objective to achieve an ‘approximation of rules on the recognition and content of the refugee status’ and ‘measures on subsidiary forms of protection’ (European Council 1999). In 2004, the EU adopted its first binding Directive on asylum recognition, which was further strengthened in 2011 (European Union 2011). Among other things, it provided common criteria for the determination of refugee status and the granting of subsidiary protection. Since 2016, negotiations have been ongoing for even further strengthening of EU legislation on asylum adjudication by turning the 2011 Directive into a regulation. This would mean a shift from minimum standards that Member States had to transpose into national law to directly applicable rules. In parallel, the EU and its Member States have also tried to achieve a gradual harmonisation of national decision-making through EU-organised networks and mechanisms for an exchange of experiences among national asylum practitioners.
As the above percentages show, neither common legislation nor practical cooperation has so far achieved their objectives in the sense that Member States would treat the same type of asylum applicants in the same, or at least similar, manner. Studies also show that not only overall protection rates for various nationality groups differ greatly from one Member State to another, but also the types of protection granted (Parusel and Schneider 2018).
Return to Afghanistan – An Illusion?
Another problem is the return of those Afghan asylum seekers who are, despite the worsening security and human rights situation in their country of nationality, determined not to be in need of protection. When an asylum application is rejected, the persons concerned usually have to leave their host country, and unless they leave voluntarily, they are to be removed by force. The example of Afghanistan shows how difficult and problematic this can really be. In 2016 and 2017 together, over 59,000 Afghan nationals received a return decision, but less than 13,000 left the territory of the Member States (Eurostat 2018a; Eurostat 2018b). Thus, there is a huge gap between the rejection of asylum applications by Afghan asylum applicants and their subsequent return.
In the political discussion about the difficulty of carrying out returns, reference is often made to a lack of willingness among the asylum seekers themselves to comply with rejection decisions. Problems can also relate to the rejected asylum seeker holding no travel documents or not submitting these to enforcement agencies, refusing to disclose their identities, or evading deportation by absconding. Countries of origin sometimes refuse to readmit their own nationals, or do not issue passports (EMN 2016).
While such explanations may hold true in many cases, the example of Afghanistan suggests that there are more fundamental reasons for non-return as well. The EU and several of its Member States have concluded readmission agreements with Afghanistan, which aim to eliminate several of the practical return obstacles mentioned. In fact, the so-called ‘Joint Way Forward’ agreement signed by the EU and Afghanistan in 2016 directly addresses obstacles to return, for example, by placing a time limit of four weeks for Afghan authorities to identify Afghan nationals and issue travel documents. There are concerns about the deal, however, including that the agreement bypassed parliamentary scrutiny; that the Afghan side only accepted the deal because it feared to lose development aid payments and investment from Europe; and that it attempts a difficult balance as Afghanistan already struggles to maintain security and to support hundreds of thousands of returnees from neighbouring countries and internally displaced people. Afghan officials and politicians have also raised concerns about its provisions (ECRE 2017).
While Afghanistan generally admits citizens who have been denied asylum in Europe back to Afghan territory, the security situation there has repeatedly caused problems. For example, several German federal states have halted deportations to Afghanistan due to security concerns (Deutscher Bundestag 2017) and, in May 2017, deportations were temporarily stopped nationwide following a terror attack near the German Embassy in Kabul. In Sweden, planned deportations have sometimes been cancelled last-minute, for unknown reasons. A survey by the European Migration Network (2017) showed that several EU Member States seldom carry out forced removals to Afghanistan, or never at all, or that they in practice only deport single adult men – exempting, for example, unaccompanied minors, women, families, or other potentially vulnerable persons. In addition, deportation does not necessarily result in dangers only to the Afghan returnees themselves, but possibly also to officials involved in the return process, such as police, border guards, and embassy staff.
Given that a growing share of Afghan asylum seekers are rejected while, at the same time, their return is seldom realistic, this ultimately leads to more irregular or semi-legal stays in Europe. In Germany, most ‘non-returnables’ from Afghanistan end up with the unstable legal status of ‘toleration’, which is a temporary suspension of deportation that hinders integration. Swedish authorities can issue temporary residence permits in cases of long-standing obstacles to return, but the respective practice is restrictive and very few Afghans have so far received such permits. Most rejected asylum applicants from Afghanistan who do not leave remain in the country without any legal status or move onward within Europe. In 2018 and 2019, Swedish media reported that failed Afghan asylum seekers, particularly young adults, left Sweden and tried to get asylum in France instead (Eriksson 2019; Parusel 2019).
A need for harmonisation and pragmatism
The fact that the asylum decision-making practice of the EU Member States varies enormously challenges one of the cornerstones of the Common European Asylum System – the aim of a uniform assessment of the protection needs of asylum seekers. A strengthening of the role of the European Asylum Support Office (EASO) could partly remedy the situation, for example if the Agency were given the power to review Member States’ decision-making practice and make (binding) suggestions for improvement in cases where the authorities of a Member State deviate strongly from common EU guidelines. In 2016, the European Commission proposed to convert the European Asylum Support Office (EASO) into a European Union Agency for Asylum, strengthening and widening its mandate and tasks, but this is not likely to quickly improve diverging asylum assessments. Besides more operative powers, the proposal gives the Agency the task of coordinating efforts among Member States to engage and develop common guidance on the situation in countries of origin, but it does not foresee that the new Agency can impose a certain decision-making practice on a Member State or intervene if a national approach is out-of-line. A ‘joint processing’ of asylum applications by officials from two or more Member States and/or centrally by EASO is not foreseen either (EC 2016).
Progress towards a further harmonisation of decision-making is essential, however, not only for general fairness principles but also with regard to any future responsibility-sharing system that would distribute asylum seekers more evenly across Member States. Obviously, it would be deeply unfair to allocate asylum seekers to a Member state where they would most likely be rejected, while the same persons would receive protection in another state. Already today, the lack of harmonised asylum adjudication is one reason behind secondary movements of asylum seekers from one Member State to another. The Dublin regulation aims to prevent and counteract repeated applications by the same persons in more than one Member State, but secondary movement is of course understandable if the same person has an above 80 percent chance to receive protection in some countries and below 20 percent chances in others.
As regards return policies, the example of Afghanistan speaks to a need for more honesty, realism, and pragmatism. On the one hand, the often-heard argument that a credible asylum policy also includes the return of persons who are not entitled to protection is plausible. On the other hand, if many asylum seekers are not granted protection while at the same time their repatriation is dangerous, unreasonable, or unenforceable, a credibility problem arises. Are people denied protection, who given the lack of a realistic return option would actually be in need of it? Or do we need to address the problem of rejected asylum seekers who cannot return through other, non-asylum solutions? One possibility could be to allow ‘non-returnable’ persons a status change towards legal residence on the basis of work or studies in the EU. Another option is to widen the applicability of humanitarian grounds for residence in the EU. Even if an individual does not qualify as a refugee or for subsidiary protection, they might deserve the opportunity to stay and integrate in a country of refuge.
If nothing happens, the obvious risk is that an asylum policy, as in the case of Afghanistan, where protection is often denied but at the same time a termination of residence cannot be enforced without major risks and dangers, becomes illegitimate and untrustworthy.
Bernd Parusel is a migration and asylum expert. He is currently on leave from the Swedish Migration Agency to serve as an adviser and secretary to a government-appointed, parliamentary commission of inquiry of Sweden’s future migration policy. At the Migration Agency, he has been responsible for studies and reports in the framework of the European Migration Network (EMN). Parusel also worked as a research secretary at the Swedish Migration Studies Delegation (DELMI), a committee formed by the Swedish Government to initiate studies in the field of migration as a basis for future migration policy decisions. Before, he was a research associate at the Federal Office for Migration and Refugees in Germany and a lecturer for European migration and asylum policy at the University of Erlangen-Nuremberg. Bernd has studied political science in Germany and Italy, and he holds a doctorate from the Institute for Migration and Intercultural Studies (IMIS) of the University of Osnabrück. Recently, he has published articles and book chapters on asylum, immigration and integration policies in Sweden, unaccompanied minors, circular migration and the development of the Common European Asylum System.
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