Explanatory Memorandum to COM(2016)271 - Proposal for an EU Agency for Asylum - EU monitor

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Explanatory Memorandum to COM(2016)271 - Proposal for an EU Agency for Asylum

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dossier COM(2016)271 - Proposal for an EU Agency for Asylum.
source COM(2016)271 EN;COM(2018)633 EN
date 04-05-2016


1. CONTEXT OF THE PROPOSAL

Reasons for and objectives of the proposal

On 6 April 2016, the Commission adopted a Communication entitled 'Towards a reform of the Common European Asylum System and enhancing legal avenues to Europe', 1 in which it set out its priorities for improving the Common European Asylum System (CEAS). The Commission announced, in response to calls by the European Council, 2 that it would progressively work towards reforming the existing Union framework by establishing a sustainable and fair system for determining the Member States responsible for asylum seekers, by reinforcing the Eurodac system, by achieving greater convergence in the asylum system thereby preventing secondary movements, and by developing an enhanced mandate for the European Asylum Support Office (EASO). This proposal is being presented as part of a first package of reform of the CEAS together with two other proposals, namely a proposal to reform the Dublin system and another proposal amending the Eurodac system.

The aim of this proposal is it to strengthen the role of EASO and develop it into an agency which facilitates the implementation and improves the functioning of the CEAS. Since taking up its responsibilities in 2011, EASO has continuously supported Member States to apply the current rules and to improve the functioning of existing tools. The Agency has gained experience and earned credibility for its work as regards practical cooperation among Member States and in supporting them to implement their obligations under the CEAS. In time, the tasks undertaken by EASO progressively evolved so as to meet the growing needs of Member States and of the CEAS as a whole. The Member States increasingly rely on the operational and technical support of the Agency. The Agency increased its knowledge and experience in the field of asylum and it is time to transform it into a centre of expertise in its own right and not one that still significantly relies on information and expertise provided by Member States.

In the Commission's view, the Agency is one of the tools that can be used to effectively address the structural weaknesses in the CEAS which have been further exacerbated by large scale and uncontrolled arrival of migrants and asylum seekers to the European Union particularly during the past year. It would not be plausible to reform the CEAS without providing the Agency with a mandate that corresponds to the demands that the reform will entail. It is essential to equip the Agency with the means necessary to assist Member States in crisis situations, but it is all the more necessary to build a solid legal, operational and practical framework for the Agency to be able to reinforce and complement the asylum and reception systems of Member States.

To reflect this development, the proposal renames EASO as the European Union Agency for Asylum. An enhanced mandate, as set out in this proposal transforms EASO into a fully-fledged Agency which is capable of providing the necessary operational and technical assistance to Member States, increasing practical cooperation and information exchange among Member States, supporting a sustainable and fair distribution of applications for international protection, monitoring and assessing the implementation of the CEAS and the capacity of asylum and reception systems in Member States, and enabling convergence in the assessment of applications for international protection across the Union.

Consistency with existing policy provisions in the policy area

On 19 February 2016, the European Council considered that progress must be made towards reforming the EU's existing framework so as to ensure a humane and efficient asylum policy. In its Communication of 6 April 2016, the Commission maintained that the overall objective of Union migration and asylum policy is to move away from a system which by poor design or poor implementation places a disproportionate responsibility on certain Member States and encourages uncontrolled movements towards other Member States. The aim is for the Union to have a robust and effective system for sustainable migration management grounded on the principles of responsibility and solidarity.

In the European Agenda on Migration, 3 the Commission had recognised the significance of EASO's role in developing and maintaining a strong common asylum policy. The Commission considered that EASO could step up practical cooperation, develop a role as the clearing house of national country of origin information to encourage more uniform decisions, take key measures as regards training and set up dedicated networks of national authorities to enhance operational cooperation on asylum-related matters. In its Communication of 6 April 2016, the Commission announced that it would be proposing a stronger mandate for EASO so that it can play a new policy-implementing role and a strengthened operational role. This would be achieved by means of a monitoring mechanism to assess compliance with the CEAS and other key tasks such as the provision and analysis of country of origin information, operating the distribution key of the Dublin system and intervening in support of Member States in emergency situations or where the necessary remedial action would not have been taken.

The aim of this proposal is to provide the European Union Agency for Asylum with the necessary tools for it to develop into an agency which facilitates the implementation and improves the functioning of the CEAS. In this respect, it complements the legal and policy instruments in the field of asylum, in particular as regards asylum procedures, standards for the qualification for individuals for international protection, the Dublin system, relocation and resettlement.

Consistency with other Union policies

This proposal is consistent with the comprehensive long-term policy on better migration management as set out by the Commission in the European Agenda on Migration, which developed President Juncker's Political Guidelines into a set of coherent and mutually reinforcing initiatives based on four pillars. Those pillars consist of reducing the incentive for irregular migration, securing external borders and saving lives, a strong asylum policy and a new policy on legal migration. This proposal further implements the European Agenda on Migration, more specifically as regards the objective of strengthening the Union's asylum policy since the European Union Agency for Asylum will ensure a full and coherent implementation of the CEAS.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

Legal basis

The legislative proposal is based on Article 78 i and i of the Treaty on the Functioning of the European Union.

Subsidiarity

The objectives of this proposal are to facilitate the implementation and improve the functioning of the CEAS, to strengthen practical cooperation and information exchange among Member States on asylum-related matters, to promote Union law and operational standards to ensure a high degree of uniformity as regards asylum procedures, reception conditions and the assessment of protection needs across the Union, to monitor the operational and technical application of Union law and standards as regards asylum and to provide increased operational and technical support to Member States for the management of the asylum and reception systems, in particular to Member States subject to disproportionate pressure on their asylum and reception systems.

Since it is a common and shared interest to ensure the proper application of the legal framework on asylum, through concerted action among Member States with the support of the European Union Agency for Asylum, so as to consolidate stability and order in the functioning of the CEAS, the objectives of this proposal cannot be sufficiently achieved by the Member States and can be better achieved at the level of the Union and the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union.

Proportionality

The proposal is intended to respond to the political realities and challenges faced by the Union in the area of migration and asylum by providing the European Union Agency for Asylum with the necessary tools to address both the disproportionate pressure on Member State's asylum and reception systems, and the inherent weaknesses in these systems for the longer term.

The proposal seeks to ensure that the legislation and operational standards on asylum are fully and correctly applied by Member States, that practical cooperation and information among Member States as well as with third countries is enhanced, that appropriate action is taken to maintain the orderly functioning of the CEAS and to address disproportionate pressure in an effective manner with the assistance of and in cooperation with the Agency. The Agency may assist Member States with the examination of applications for international protection upon the request of the Member States and within a framework set out clearly in the operational plan. The Agency may be required to intervene and provide assistance to a Member State only in those cases where, following up on a monitoring exercise or in case of disproportionate pressure on the asylum and reception systems no action or insufficient measures are taken by the Member State concerned, thereby jeopardizing the functioning of the CEAS. In view of its objective and in accordance with the principle of proportionality, as set out in that Article 5 of the Treaty on European Union, this proposal does not go beyond what is necessary in order to achieve those objectives.

Choice of the instrument

It is only a regulation that can provide the necessary degree of efficiency and uniformity needed in the application of Union law on asylum. Moreover, having regard to the fact that EASO, renamed European Union Agency for Asylum, was established by means of a regulation, the same legal instrument is also appropriate for this proposal.

3. CONSULTATION OF INTERESTED PARTIES

In preparation of this proposal, the Commission has relied upon discussions that took place regularly in the European Council and the Council of Ministers, as well as the European Parliament, concerning the development of the Union's migration and asylum policy and the use of Union agencies in better migration management. The role of EASO in providing operational and technical support to Member States including at the external borders in cooperation with the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, has been invoked on several occasions. Member States have generally considered that EASO has a significant role in assisting them with relocation and resettlement.

Since EASO has taken up its responsibilities on 1 February 2011, there have been continued discussions with relevant stakeholders at European and national level. In particular, there have been regular discussions in the context of reporting by the Agency in the European Parliament and in the Council. The Agency continuously reports on its activities at the Management Board meetings and through various reports it issues during the year. There have also been regular information exchanges with other Union agencies in particular the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union and the European Union Agency for Fundamental Rights. Several discussions have also been organised with civil society and academia.

An evaluation of EASO was carried out on the basis of Article 46 of Regulation (EU) No 439/2010 which provides for an independent external evaluation which covers EASO's impact on practical cooperation on asylum and on the CEAS. The Commission carried out an internal evaluation of EASO in 2013. In 2014, EASO underwent an external evaluation by an external independent contractor and which covered the period from February 2011 to June 2014. The temporal scope of the external evaluation was subsequently extended to cover the entire period since the Agency took up its responsibilities. The evaluation was conducted between October 2014 and July 2015, and it covered all the activities carried out by EASO across all Member States. This proposal takes into account the recommendations resulting from that evaluation and the views of EASO as regards the future of the Agency.

Fundamental rights

This proposal respects fundamental rights and observes the principles recognised, in particular, by the Charter of Fundamental Rights of the European Union. All activities of the European Union Agency for Asylum shall be carried out in full respect of fundamental rights as enshrined in the Charter, including the right to asylum (Article 18 of the Charter), the protection from refoulement (Article 19 of the Charter), the right to respect for private and family life (Article 7 of the Charter), the right to protection of personal data (Article 8 of the Charter) and the right to an effective remedy (Article 47 of the Charter). The proposal fully takes into account the rights of the child and the special needs of vulnerable persons.

4. BUDGETARY IMPLICATIONS

The European Union Agency for Asylum, which is to be built on the existing EASO, is tasked with facilitating the implementation and improving the functioning of the CEAS.

The total financial resources necessary to enable the Agency to fulfil its mission under the proposed expanded mandate amount to EUR 363.963 million for the period 2017-2020. For the Agency to carry out its new tasks effectively, 275 temporary agent posts and 82 contract agents for a total of 357 staff members over the period 2017-2020 will be needed in addition to the current number of temporary and contractual agent posts authorised under the 2016 budget to bring the staff of the Agency to a total of 500 by 2020.

The financial needs are compatible with the current multiannual financial framework and may entail the use of special instruments as defined in the Council Regulation (EU, Euratom) No 1311/2013. 4

5. OTHER ELEMENTS

Monitoring, evaluation and reporting arrangements

The European Union Agency for Asylum must draw up an annual activity report on the situation of asylum, in which it needs to evaluate the results of the activities it carries out throughout the year. The report must contain a comparative analysis of the Agency's activities so that the Agency may improve the quality, consistency and effectiveness of the CEAS. That annual activity report must be transmitted by the Agency to the Management Board, the European Parliament and the Council.

The Commission must commission an evaluation within three years of entry into force of this Regulation, and then every five years thereafter, to assess particularly the impact, effectiveness and efficiency of the Agency and its working practices. That evaluation must cover the Agency's impact on practical cooperation on asylum-related matters and on the CEAS. The Commission must send the evaluation report together with its conclusions on the report to the European Parliament, the Council and the Management Board. The findings of the evaluation must be made public.

Detailed explanation of the specific provisions of the proposal

Regulation (EU) No 439/2010 establishes the European Support Asylum Office (EASO) and it defines the role of EASO as being intended to strengthen practical cooperation among Member States and to provide or coordinate the provision of operational support to Member States. EASO could achieve these objectives by enabling information exchange and pooling of best practices, providing support for training and for relocation, coordinating activities related to the country of origin information, providing support as regards the implementation and the external dimension of the CEAS, setting out technical documents on the implementation of Union asylum instruments and by providing operational support to Member States subject to particular pressure.

This proposal builds upon the current mandate of EASO and expands it so as to transform EASO into a fully-fledged Agency equipped with the necessary tools to: i enhance practical cooperation and information exchange on asylum; i promote Union law and operational standards to ensure a high degree of uniform application of the legal framework on asylum; i ensure greater convergence in the assessment of protection needs across the Union; i monitor and assess the implementation of the CEAS; i provide increased operational and technical assistance to Member States for the management of the asylum and reception systems, in particular in cases of disproportionate pressure. The proposal renames EASO as the European Union Agency for Asylum to reflect the stronger mandate of the Agency.

Enhance practical cooperation and information exchange on asylum

This aspect is covered by Chapter 2 of the proposal concerning practical cooperation and information exchange among Member States and with the Agency. The proposal sets out how the Agency will perform its tasks of facilitating, coordinating and strengthening practical cooperation and information exchange among Member States on various aspects of asylum. Those tasks are not entirely new to the Agency since EASO is already responsible for enabling information exchange and facilitating practical cooperation. However, EASO needed to rely on the voluntary provision of information by Member States. With this proposal, the Agency and the Member States will have a duty to cooperate and an obligation to exchange information.

To be a centre of expertise, the Agency will need to build its own capacity of gathering and analysing information on the situation of asylum in the Union and third countries insofar as this may have an impact on the Union, as well as on the implementation of the CEAS. The information analysis on the situation of asylum should enable the Agency to assist Member States in better understanding the factors for asylum-related migration towards and within the Union, as well as for the purpose of early warning and preparedness of Member States. In this respect, the Agency should work closely not only with Member States but also with other relevant Union agencies, the European External Action Service and with international organisations such as UNHCR.

In the context of a reform of the Dublin system, the Agency will have additional tasks and obligations that will derive from that reform. The Agency is the natural choice to provide Member States with the support they need to operate and manage the corrective mechanism.

The Agency will continue to play an important role in developing and providing training to members of national administrations, courts, tribunals and national services responsible for asylum matters in Member States. With greater involvement of the Agency's own staff in providing operational and technical assistance to Member States, the Agency also will need to ensure appropriate training for its own staff. Furthermore, the Agency must ensure that all those experts who participate in the asylum support teams and the asylum intervention pool receive specialist training relevant to their duties and functions prior to their participation in the operational activities.

Ensure greater convergence in the assessment of protection needs across the Union

In its conclusions of 21 April 2016 on convergence in asylum decision practices, 5 the Council noted that notwithstanding progress on the CEAS, there are still significant disparities between the Member States in the recognition rates, the nature and quality of the international protection granted and generally, in the outcome of procedures. The Council recognised the need to create a more structured and streamlined EASO COI production process that covers all main countries of origin and thematic issues by strengthening the resources available for EASO COI production, and it invited EASO to assist with the EU-level process of policy development on the basis of joint COI.

To ensure greater convergence and address disparities in the assessment of applications for international protection, the proposal gives the Agency the task of coordinating efforts among Member States to engage and develop a common analysis providing guidance on the situation in third countries of origin as set out in Chapter 3 of the proposal. Until now, the Agency has been required to organise, promote and coordinate activities relating to information on countries of origin, including providing an analysis of that information. This is a task that the Agency will continue to perform and it shall also ensure the coordination of national initiatives producing country of origin information by establishing networks on country of origin information. These networks are to be used to exchange and update national reports, as well as a query system whereby specific questions of fact that may arise from applications for international protection could be sent to the Agency.

Another new task for the Agency is to assist the Commission in regularly reviewing the situation in third countries which are included in the common EU list of safe countries of origin. When considering adding another third country to that EU list of safe countries, the Commission could request the Agency to provide it with information on that particular third country.

Promote Union law and operational standards on asylum

Chapter 4 of the proposal deals with operational standards, guidelines and best practices. Under the current mandate of EASO, the Agency could adopt technical documents on the implementation of the asylum instruments. The proposal distinguishes among the various types of technical documents that may be adopted by the Agency. The Agency will, on its own initiative or at the request of the Commission, develop operational standards on the implementation of the instruments of Union law on asylum and indicators for monitoring compliance with those standards. The Agency will also be able to develop guidelines and best practices related to the implementation of the instruments of Union law on asylum. In cases where Member States would require assistance to apply those operational standards, guidelines and best practices they may request the Agency to provide them with the necessary expertise or operational and technical assistance.

Monitor and assess the implementation of the CEAS

Chapter 5 of the proposal provides for a new task of the Agency, which is to monitor and assess all aspects of the CEAS, in particular asylum procedures, the Dublin system, recognition rates and quality and nature of international protection granted, to monitor compliance with the operational standards and guidelines as well as to verify the asylum and reception systems and the capacity of Member State to manage those systems effectively particularly in times when they would face disproportionate pressure. The aim of the monitoring exercise is, on the one hand, to ensure that any shortcomings in the functioning of the CEAS are addressed as early as possible so as to ensure an orderly management of the asylum and reception systems and on the other, it is to ensure that Member States have the necessary tools in place to be able to address situations of disproportionate pressure adequately.

Article 13 establishes the scope of the monitoring and assessment mechanism and Article 14 sets out the procedure for that exercise. The Agency may base its assessment on information provided by Member States, information analysis on the situation of asylum developed by the Agency, on-site visits and case sampling. The monitoring exercise may be programmed by Member State or on the basis of thematic or specific aspects of the asylum systems. The Agency will set up teams of experts, composed of experts from the Agency and the Commission, to carry out the monitoring exercise and draft a report setting out their findings. The Management Board adopts the report after taking into account comments from the Member State concerned and transmits it to the Commission. In parallel, the Executive Director submits draft recommendations to the Member State concerned for its comments, following consultation of the Commission. The draft recommendations should outline the necessary measures to address shortcomings in the monitoring report. The Management Board adopts the recommendations and invites the Member State to submit an action plan for the implementation of those recommendations within a maximum of nine months.

Article 15 deals with those situations where after that period, the Member State concerned is still non-compliant and the seriousness of the shortcomings is such that it jeopardizes the functioning of the CEAS. At that stage, the Commission makes its own assessment of the action plan and the seriousness of the shortcomings. The Commission then adopts recommendations and it may, where necessary, identify measures to be taken by the Agency in support of the Member State concerned. That Member State will need to report to the Commission on the state of implementation of the recommendations. If after a time-limit set in the Commission's recommendations the Member State remains non-compliant, the Commission may take further action requiring the Agency to intervene in support of the Member State.

Provide increased operational and technical assistance to Member States

One important task of EASO has been to provide technical assistance to Member States in particular in relation to interpreting services, information on countries of origin and knowledge of handling and management of asylum cases by deploying asylum support teams. Member States retained autonomy on the selection of the number and profiles of experts as well as on the duration of their deployment.

Chapter 6 of the proposal significantly expands the role and functions of the Agency insofar as operational and technical assistance is concerned similarly to what was proposed by the Commission for the European Border and Coast Guard Agency. 6 The proposal sets out clearly the operational and technical measures that may be organised and coordinated by the Agency upon the request of Member States. These measures could include also the possibility for the Agency to facilitate the examination of applications for international protection that are under examination by the competent national authorities. In that case detailed arrangements and a clear description of tasks and a reference to applicable legislation would need to be foreseen in the operational plan.

The Agency will deploy asylum support teams to provide operational and technical assistance to Member States. Those asylum support teams shall be composed of experts from Member States or experts seconded by Member States to the Agency and experts from the Agency's own staff. In cases where the asylum and reception systems are subject to disproportionate pressure that places exceptionally heavy and urgent demands, the Agency will organise and coordinate a comprehensive set of operational and technical measures. This can be done at the request of a Member State or on a proposal from the Agency. In those instances where despite the disproportionate pressure there is no request for assistance, or the offer of the Agency is not accepted or insufficient action is taken by the Member State concerned to the extent of jeopardising the functioning of the CEAS, the Commission may adopt a decision by means of implementing act identifying one or more of the operational and technical measures that the Agency should take to support the Member State concerned. For those purposes, the Agency will set up an asylum intervention pool which will constitute a reserve of not less than 500 experts from the Member States.

The number and profiles of experts in the asylum support teams are decided by the Management Board on a proposal of the Executive Director. Given the increasing number of children and unaccompanied children among the migrants and asylum seekers, it is important that there would be those teams include experts with child protection profiles. The duration of deployment is determined by the home Member State but to ensure continuity in the deployment it is necessary to establish a minimum duration which is set at 30 days in the proposal. As for the experts of the asylum intervention pool, the Management Board will decide, on a proposal of the Executive Director, on the profiles of the experts and on the share that each Member State will contribute to constitute the reserve of a minimum 500 experts. The deployment of experts from the asylum intervention pool is mandatory on Member States without the possibility of invoking an exceptional situation that could substantially affect the discharge of national tasks. The Agency may also deploy experts from its own staff to enhance the deployment of experts from the asylum intervention pool.

Regulation (EU) No XXX/XXX provides for setting up migration management support teams at hotspot areas characterised by mixed migratory flows. Those migration management support teams are composed of experts and officials deployed by and through different Union Agencies including the European Union Agency for Asylum. The operational and technical reinforcement that may be provided by the asylum support teams or by experts deployed from the asylum intervention pool may include the screening of third-country nationals, the registration of application for international protection, and where requested by Member States, the examination of such applications, as well as the provision of information and specific assistance to applicants or potential applicants that could be subject to relocation.

Experts forming part of the asylum support teams or deployed from the asylum intervention should be able to consult national and European databases to be able to perform their tasks effectively and assist Member States. For this purpose, the proposal establishes an obligation on Member States to allow those experts to consult European databases and provides for the possibility for them to allow consultation of national databases subject to Union and national law on access and consultation of those databases.

In order to ensure adequate and efficient coordination on the ground, the proposal transforms what until now has been called a Union contact point into a coordinating officer of the Agency, similar to the coordinating officer used in operations coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union. The role of the coordinating officer is to foster cooperation and coordination between the host Member State and the participating Member States. The coordinating officer takes instructions only from the Agency and is to report to the Executive Director where the operational plan is not adequately implemented.

In view of the fact that the Agency will be deploying experts from its own staff to form part of the asylum support teams and in addition to the asylum intervention pool, the proposal also foresees the possibility for the Agency to acquire or lease its own technical equipment. This does not affect the obligation of the Member States to supply the necessary facilities and equipment for the Agency to be able to provide operational and technical assistance, and it should complement equipment provided by other Union agencies.

Other aspects

In Chapter 7, the proposal sets out provisions on the protection of personal data and provides the Agency with a mandate to process personal data. The processing of personal data by the Agency is limited to the purpose of performing its tasks when providing operational and technical assistance, facilitating information exchange with Member States and other Union Agencies in particular within the context of the migration management support teams, and analysing information on the situation of asylum. The Agency will, in cooperation with the European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (eu-LISA), also develop and operate an information system capable of exchanging classified information.

As regards cooperation by the Agency, Chapter 8 covers cooperation by the Agency with Denmark and with associate countries, cooperation with third countries, cooperation with other Union bodies and with international organisations, in particular UNHCR. These aspects are not entirely new when compared to the current mandate of EASO where cooperation with stakeholders featured as important aspect.

The main change in this Chapter concerns Article 35 on cooperation with third countries which is now more structured and provides more clearly for possibilities of cooperation by the Agency with third countries. It establishes that the Agency shall coordinate not only the information exchange but also operational cooperation between Member States and third countries, and that officials from third countries may be invited to act as observers in the operational activities carried out by the Agency. As regards resettlement, the Agency will continue to coordinate the exchange of information and other actions taken by Member States including schemes which are carried out at the level of the European Union. The Agency will also be able to participate in the implementation of international agreements concluded by the Union with third countries.

Chapter 9 deals with the organisation of the Agency. This Chapter reflects the existing organisation of EASO and follows the common approach on decentralised agencies agreed upon by the European Parliament, the Council and the Commission. The difference compared to the existing structure is that the proposal provides for the post of a Deputy Executive Director considering that the Agency's tasks have been significantly enhanced and there will be a corresponding large increase in staff until 2020. Another difference compared to current organisation concerns the Consultative Forum. That forum should be independent of the Agency and for that purpose it will no longer be chaired by the Executive Director and it should assist the Executive Director and the Management Board in matters related to asylum.

Chapter 10 covers the financial provisions and Chapter 11 consists of general provisions. Under the financial provisions, the Agency has been provided with the possibility of awarding grants. The general provisions reflect the same provisions as in the existing regulation. Chapter 12 covers the final provisions. New under this chapter is the article on the committee procedure which is intended to cover the possibility for the Commission to adopt implementing acts under this proposal. This last chapter covers the obligation of the Agency to report annually on its activities as well as the evaluation and review of the Agency.