Considerations on COM(2016)271 - Proposal for an EU Agency for Asylum - EU monitor

EU monitor
Sunday, March 29, 2020
calendar

Considerations on COM(2016)271 - Proposal for an EU Agency for Asylum

Please note

This page contains a limited version of this dossier in the EU Monitor.

 
dossier COM(2016)271 - Proposal for an EU Agency for Asylum.
document COM(2016)271 EN;COM(2018)633 EN
date May  4, 2016
 
(1) The objective of the Union's policy on asylum is to develop and establish a Common European Asylum System (CEAS), consistent with the values and humanitarian tradition of the European Union and governed by the principle of solidarity and fair sharing of responsibility.

(2) The CEAS is based on common minimum standards for asylum procedures, recognition and protection offered at Union level, reception conditions and a system for determining the Member State responsible for asylum seekers. Notwithstanding progress on the CEAS, there are still significant disparities between the Member States in the granting of international protection and in the form that such international protection takes. Those disparities should be addressed by ensuring greater convergence in the assessment of applications for international protection and by guaranteeing a high and uniform level of application of Union law across the Union.

(3) In its Communication of 6 April 2016, the Commission set out its options for improving the CEAS, namely to establish a sustainable and fair system for determining the Member States responsible for asylum seekers, to reinforce the Eurodac system, to achieve greater convergence in the asylum system and to prevent secondary movements, and develop an enhanced mandate for the European Asylum Support Office. That Communication is in line with calls by the European Council on 18 February 2016 to make progress towards reforming the EU's existing framework so as to ensure a humane and efficient asylum policy. It also proposes a way forward in line with the holistic approach to migration set out by the European Parliament in its own initiative report of 12 April 2016.

(4) The European Asylum Support Office was established by Regulation (EU) No 439/2010 of the European Parliament and of the Council  7 and it took up its responsibilities on 1 February 2011. The European Asylum Support Office has enhanced practical cooperation among Member States on asylum-related matters and in assisting Member States in implementing their obligations under the CEAS. The European Asylum Support Office also provides support to Member States whose asylum and reception systems are under particular pressure. However, its role and function need to be further strengthened so as to not only support Member States in their practical cooperation but to reinforce and complement the asylum and reception systems of Member States.

(5) Having regard to structural weaknesses of the CEAS brought to the fore by large-scale and uncontrolled arrival of migrants and asylum seekers to the Union and the need for an efficient, high and uniform level of the application of Union asylum law in Member States, it is necessary to improve the implementation and functioning of the CEAS by building on the work of the European Asylum Support Office and further develop it into a fully-fledged agency which should be responsible for facilitating and improving the functioning of the CEAS, for enabling a sustainable and fair distribution of applications for international protection for ensuring convergence in the assessment of applications for international protection across the Union, and for monitoring the operational and technical application of Union law.

(6) The tasks of the European Asylum Support Office should be expanded, and to reflect those changes, it should be renamed European Union Agency for Asylum. The Agency should be a centre of expertise and its main role should be to strengthen practical cooperation and information exchange among Member States on asylum, 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, monitor the operational and technical application of Union law and standards as regards asylum, support the Dublin system and provide increased operational and technical support to Member States for the management of the asylum and reception systems, in particular those whose systems are subject to disproportionate pressure.

(7) The European Union Agency for Asylum should work in close cooperation with Member States' asylum authorities, with national immigration and asylum services and other services, drawing on the capacity and expertise of those services, and with the Commission. Member States should cooperate with the Agency to ensure that it is able to fulfil its mandate. It is important that the Agency and the Member States act in good faith and have a timely and accurate exchange of information. Any provision of statistical data should respect the technical and methodological specifications of Regulation (EC) No 862/2007. 8

(8) The European Union Agency for Asylum should gather and analyse information on the situation of asylum in the Union and in third countries insofar as this may have an impact on the Union. That 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.

(9) Having regard to the reform of the Dublin system, the European Union Agency for Asylum should provide the necessary support to the Member States, in particular by operating and managing the corrective mechanism.

(10) The European Union Agency for Asylum should assist Member States with training of experts from all national administrations, courts and tribunals, and national services responsible for asylum matters, including the development of a common core curriculum. In addition, the Agency should ensure that all experts participating in asylum support teams or forming part of the asylum intervention pool receive specialist training before their participation in operational activities organised by the Agency.

(11) The European Union Agency for Asylum should ensure a more structured and streamlined production of information on countries of origin at the level of the European Union. It is necessary for the Agency to gather information and draw up reports providing for country of origin information by making use of European networks on country of origin information so as to avoid duplication and create synergies with national reports. Furthermore, to ensure convergence in the assessment of applications for international protection and the nature and quality of protection granted, the Agency should, together with Member States, engage in and develop a common analysis providing guidance on the situation in specific countries of origin.

(12) The common EU list of safe countries of origin established by Regulation (EU) No XXX/XXX  9 should be regularly reviewed by the Commission. Having regard to the Agency's expertise, it should assist the Commission in reviewing that list. The Agency should also, at the request of the Commission, provide it with information on specific third countries which could be included in the common EU list of safe countries of origin, and on third countries designated as safe countries of origin or safe third countries or to which the concepts of safe third country, first country of asylum or European safe third country by Member States apply.

(13) To ensure a high degree of uniformity as regards asylum procedures, reception conditions and the assessment of protection needs across the Union, the Agency should organise and coordinate activities promoting Union law. For that purpose, the Agency should assist Member States by developing operational standards and indicators for monitoring compliance with those standards. The Agency should also develop guidelines on asylum-related matters and should enable the exchange of best practices among Member States.

(14) The European Union Agency for Asylum, in close cooperation with the Commission and without prejudice to the Commission's responsibility as guardian of the Treaties, should establish a mechanism to monitor and assess the implementation of the CEAS, the compliance by Member States with operational standards, guidelines and best practices on asylum and to verify the functioning of the asylum and reception systems of Member States. The monitoring and assessment should be comprehensive and should be based, in particular, on information provided by Member States, information analysis on the situation of asylum developed by the Agency, on-site visits and case sampling. The Agency should report its findings to the Management Board which in turn should adopt the report. The Executive Director should, after consultation with the Commission, make draft recommendations to the Member State concerned outlining the necessary measures to address serious shortcomings, which in turn shall be adopted by the Management Board as recommendations.

(15) The recommendations should be followed up on the basis of an action plan prepared by the Member State concerned. If, within the set period of time, the Member State concerned does not take the necessary measures to address the recommendations, and the shortcomings in the asylum and reception systems are so serious that they jeopardize the functioning of the CEAS, the Commission should, based on its own assessment of the implementation of the action plan and the seriousness of the shortcomings, adopt recommendations addressed to that Member State outlining the measures needed to remedy the serious shortcomings. The Commission may need to organise on-site visits to the Member State concerned to verify the implementation of the action plan. Where necessary, the Commission should also identify the measures that should be taken by the Agency in support of that Member State. If the Member State should remain non-compliant for a certain period of time, the Commission may take further action requiring the Agency to intervene in support of that Member State.

(16) To facilitate and improve the proper functioning of the CEAS and to assist Member States in implementing their obligations within the framework of CEAS, the European Union Agency for Asylum should provide Member States with operational and technical assistance, in particular when their asylum and receptions systems are subject to disproportionate pressure. The Agency should provide the necessary operational and technical assistance through the deployment of asylum support teams consisting of experts from the Agency's own staff, experts from Member States or experts seconded by Member States to the Agency, and based on an operational plan. Those teams should support Member States with operational and technical measures, including by providing expertise relating to identification and registration of third countries nationals, interpreting services, information on countries of origin and knowledge of the handling and management of asylum cases, as well as by assisting national authorities competent for the examination of applications for international protection and by assisting with relocation. The arrangements for the asylum support teams should be governed by this Regulation in order to ensure their effective deployment.

(17) In cases where a Member State's asylum and reception systems are subject to disproportionate pressure that places exceptionally heavy and urgent demands on their asylum or reception systems, the European Union Agency for Asylum should assist that Member State upon request or on the Agency's own initiative, by means of a comprehensive set of measures, including the deployment of experts from the asylum intervention pool. To ensure the availability of those experts and their immediate deployment, the asylum intervention pool should constitute a reserve of experts from Member States amounting to a minimum of 500 persons. The Agency should itself be able to intervene in support of a Member State where despite the disproportionate pressure, the Member State concerned does not request for sufficient assistance from the Agency or the Member State does not take sufficient action to address that pressure with the consequence that the asylum and reception systems would be ineffective to the extent of jeopardising the functioning of the CEAS. A disproportionate number of applications for international protection for which a Member States is responsible may be an indication of disproportionate pressure.

(18) To ensure that the asylum support teams or the experts deployed from the asylum intervention pool are able to perform their tasks effectively with the means necessary, the European Union Agency for Asylum should be able to acquire or lease its own technical equipment. This should, however, not affect the obligation of Member States to supply the necessary facilities and equipment for the Agency to be able to provide the required operational and technical assistance. Any acquisition or leasing of equipment should be subject to a thorough needs and cost/benefit analysis by the Agency.

(19) For Member States that are faced with specific and disproportionate pressure on their asylum and reception systems due, in particular, to their geographical or demographic situation, the European Union Agency for Asylum should support the development of solidarity within the Union and assist in the better relocation of beneficiaries of international protection among Member States, while ensuring that asylum and reception systems are not abused.

(20) At particular areas of the external borders where Member States face disproportionate migratory pressures characterised by large influxes of mixed migratory flows, referred to as hotspot areas, the Member States should be able to rely on increased operational and technical reinforcement by migration management support teams composed of teams of experts from Member States deployed through the European Union Agency for Asylum, the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union and Europol or other relevant Union agencies, as well as experts from the staff of the European Union Agency for Asylum and the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union. The Agency should ensure coordination of its activities in the migration management support teams with the Commission and the other relevant Union agencies.

(21) For the purpose of fulfilling its mission, and to the extent required for the accomplishment of its tasks, the European Union Agency for Asylum should cooperate with Union bodies, agencies and offices, in particular with 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, in matters covered by this Regulation in the framework of working arrangements concluded in accordance with Union law and policy. Those working arrangements should receive the Commission's prior approval.

(22) The European Union Agency for Asylum should cooperate with the European Migration Network, established by Council Decision 2008/381/EC 10 , to ensure synergies and avoid duplication of activities.

(23) The European Union Agency for Asylum should cooperate with international organisations, in particular the United Nations High Commissioner for Refugees (UNHCR) in matters covered by this Regulation in the framework of working arrangements so as to benefit from their expertise and support. To that end, the roles of UNHCR and the other relevant international organisations should be fully recognised and those organisations should be involved in the work of the Agency. The working arrangements should receive the Commission's prior approval.

(24) The European Union Agency for Asylum should facilitate operational cooperation between Member States in matters covered by this Regulation. It should also cooperate with authorities of third-countries in the framework of working arrangements which should receive the Commission's prior approval. The Agency should act in accordance with the Union's external relations policy and under no circumstances should it formulate any independent external policy. In their cooperation with third countries, the Agency and the Member States should comply with norms and standards at least equivalent to those set by Union legislation also when the cooperation with third countries takes place on the territory of those countries.

(25) The European Union Agency for Asylum should maintain a close dialogue with civil society with a view to exchanging information and pooling knowledge in the field of asylum. The Agency should set up a Consultative Forum which should constitute a mechanism for the exchange of information and the sharing of knowledge. The Consultative Forum should assist the Executive Director and the Management Board in matters covered by this Regulation.

(26) This Regulation 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 these fundamental rights and principles, including the right to asylum, the protection from refoulement, the right to respect for private and family life, the right to protection of personal data and the right to an effective remedy. The rights of the child and the special needs of vulnerable persons shall always being taken into account. 

(27) The Commission and the Member States should be represented on the Management Board of the European Union Agency for Asylum in order to exercise a policy and political oversight over its workings. The Management Board should, where possible, consist of the operational heads of the Member States' asylum administrations or their representatives. It should be given the necessary powers, in particular to establish the budget, verify its execution, adopt the appropriate financial rules, establish transparent working procedures for decision-making by the Agency, and appoint an Executive Director and Deputy Executive Director. The Agency should be governed and operated in line with the principles of the Common Approach on Union decentralised agencies adopted on 19 July 2012 by the European Parliament, the Council and the European Commission.

(28) In order to ensure uniform conditions for the implementation of this Regulation, in particular as regards situations requiring urgent action at the external borders, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council. 11

(29) The European Union Agency for Asylum should be independent as regards operational and technical matters and it should enjoy legal, administrative and financial autonomy. To that end, it is necessary and appropriate that the Agency should be a body of the Union having legal personality and exercising the implementing powers conferred upon it by this Regulation.

(30) In order to guarantee the autonomy of the European Union Agency for Asylum, it should have its own budget, most of which comes essentially from a contribution from the Union. The financing of the Agency should be subject to an agreement by the budgetary authority as set out in point 31 of the Inter-institutional Agreement of 2 December 2013 between the European Parliament, the Council and the Commission on budgetary discipline, on cooperation in budgetary matters and on sound financial management. 12 The Union budgetary procedure should be applicable to the Union's contribution and to any grant chargeable to the general budget of the European Union. The auditing of accounts should be undertaken by the Court of Auditors.

(31) Any financial resources made available by the Agency under the form of grants, delegated agreements or form of contract in accordance with this Regulation should not result in double financing with other national, European or international sources.

(32) Commission Delegated Regulation (EU) No 1271/2013 of 30 September 2013 on the framework financial regulation for the bodies referred to in Article 208 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council (OJ L 328, 7.12.2013, p. 42) should apply to the European Union Agency for Asylum.

(33) Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council  13 should apply without restriction to the European Union Agency for Asylum, which should accede to the Inter-institutional Agreement of 25 May 1999 between the European Parliament, the Council of the European Union and the Commission of the European Communities concerning internal investigations by the European Anti-Fraud Office. 14

(34) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents 15 should apply to the European Union Agency for Asylum.

(35) Any processing of personal data by the European Union Agency for Asylum within the framework of this Regulation should be conducted in accordance with Regulation (EC) No 45/2001 of the European Parliament and of the Council, and should respect the principles of necessity and proportionality. 16 The Agency may process personal data to perform its tasks of providing operational and technical assistance to Member States, to facilitate the exchange of information with Member States, the European Agency for the Management of Operational Cooperation at the External Borders of the Member States, Europol or Eurojust, to analysing information on the situation of asylum and for administrative purposes. Any further processing of retained personal data for purposes other than those set out in this Regulation should be prohibited. 

(36) Regulation (EU) No XXX/2016 of the European Parliament and of the Council  17 on the protection of individuals with regard to the processing of personal data and on the free movement of such data applies to the processing of personal data by the Member States carried out in application of this Regulation unless such processing is carried out by the designated or verifying competent authorities of the Member States for the purposes of the prevention, investigation, detection or prosecution of terrorist offences or of other serious criminal offences including the safeguarding against and the prevention of threats to public security.

(37) Directive 2016/XXX/EU of the European Parliament and of the Council  18 on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data applies to the processing of personal data by competent authorities of the Member States for the purposes of the prevention, investigation detection or prosecution of terrorist offences or of other serious criminal offences pursuant to this Regulation.

(38) The rules set out in Regulation (EU) No XXX/2016 regarding the protection of the rights and freedoms of individuals, notably their right to the protection of personal data concerning them, with regard to the processing of personal data should be specified in respect of the responsibility for the processing of the data, of safeguarding the rights of data subjects and of the supervision of data protection, in particular as far as certain sectors are concerned.

(39) The Agency should process personal data only for the purposes of performing its tasks of providing operational and technical assistance, when carrying out case sampling for the purposes of the monitoring exercise, possibly handling applications for international protection from children or vulnerable persons, facilitating the exchange of information with Member States, the European Agency for the Management of Operational Cooperation at the External Borders of the Member States, Europol or Eurojust and in the framework of information obtained when performing its tasks in the migration management support teams at hotspots, and for analysing information on the situation of asylum. Any processing of personal data should respect the principle of proportionality and be strictly limited to personal data necessary for these purposes.

(40) Any personal data that the Agency processes, except those processed for administrative purposes, should be deleted after 30 days. A longer storage period is not necessary for the purposes for which the Agency processes personal data within the framework of this Regulation;

(41) The European Data Protection Supervisor was consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 and delivered an opinion on […]. 19

(42) Since the objectives of this Regulation, namely the need 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, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of the action, be better achieved at the level of the Union, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the TEU. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.

(43) [In accordance with Article 3 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, those Member States have notified their wish to take part in the adoption and application of this Regulation] 

OR

[In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, those Member States are not taking part in the adoption of this Regulation and are not bound by it or subject to its application.]

OR

[(XX) In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, the United Kingdom is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.

(XX) In accordance with Article 3 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Ireland has notified (, by letter of ...,) its wish to take part in the adoption and application of this Regulation.]

OR

[(XX) In accordance with Article 3 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, the United Kingdom has notified (, by letter of ...,) its wish to take part in the adoption and application of this Regulation.

(XX) In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.] 

(44) In accordance with Articles 1 and 2 of the Protocol (No 22) on the Position of Denmark, annexed to the Treaties, Denmark is not taking part in the adoption of this Regulation and is not bound by it nor is it subject to its application.

(45) Taking into account that Denmark has until now contributed to the practical cooperation between Member States within the area of asylum, the Agency should facilitate operational cooperation with Denmark. To that end, a Danish representative should be invited to participate in all the meetings of the Management Board, without the right to vote.

(46) The competence to take decisions by Member States' asylum authorities on individual applications for international protection remains with Member States.

(47) This Regulation aims to amend and expand the provisions of Regulation (EU) No 439/2010 of the European Parliament and of the Council. Since the amendments to be made are of a substantial nature, that act should, in the interests of clarity, be replaced and repealed. References to the repealed regulation should be construed as references to this Regulation.