www.emnnetherlands.

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THE COMMON
EUROPEAN ASYLUM
SYSTEM
A JUDICIAL REALITY OR PRACTICE?
Report of the International EMN Conference of April 24, 2013
The Hague, Clingendael Institute

On the 24th of April 2013 the Dutch National Contact Point of the European Migration
Network (EMN) organised a conference on the Common European Asylum System (CEAS).
The conference was hosted in the Clingendael Institute in The Hague.

The EMN was established via Council Decision

2008/381/EC of 14 May 2008 and is financially
supported by the European Commission.

INTRODUCTION
Chair of the day was Monika Smit, Head of the research division Justice Administration,
Legislation and Alien Affairs at the Research and Documentation Centre (WODC) of the
Ministry of Security and Justice of the Netherlands.

Has CEAS reached its goal?

The Chair welcomes all, especially the ones
who come from far to participate in the EMN
conference on the CEAS. The aim of the CEAS
is that it will ensure access to asylum for those
who are in need of protection and through
a common asylum procedure CEAS will deal
with problems like asylum shopping. Monika
Smit formulates several questions that will be
the roadmap of todays conference. Has CEAS
led to agreements on legislative instruments
which aimed at creating a level playing
field and has it reached a higher degree of
harmonisation? Has it reached its goals? If
not, why and what does it need to succeed?
Does it need more enforcement or is a third
generation measures necessary?
Two of the CEAS legislative instruments,
the Qualification Directive and the Reception Directive will be picked out, when trying to answer
the intriguing central question whether the CEAS is a judicial reality or actual practice. This will be
done by presenting national experiences from Sweden, Poland, Italy and the Netherlands. The Chair
expresses her hope that besides the success stories, there also will be an honest account of inevitable
implementation problems and challenges in order to come to solutions.

COMMON EUROPEAN
ASYLUM SYSTEEM
The current status of the CEAS negotiations from a Dutch
perspective. The second phase of European harmonisation
in the area of asylum.
First speaker of the day is Harke Heida, Director of the Migration Policy Department of the
Ministry of Security and Justice of the Netherlands.

Heida sets out to throw a small stone in the Brussels pond today as he will elaborate on the CEAS
negotiations from a Dutch perspective. Although his presentation is critical, it comes from a loyal
partner in the European integration process.

For the Netherlands the CEAS negotiations have mainly been an

effort in damage control. Further harmonisation could imply to end
up with a less efficient system.
For the Netherlands the CEAS negotiations have rather been an effort in damage control rather
than in making significant steps towards further harmonisation. In the Netherlands there is a long
tradition of protecting persons who seek international protection. Over the years a detailed system
of processing applications with on the one hand the focus on swift decisions and on the other hand
careful protection has been developed. Further harmonisation could imply for the Netherlands
to end up with a less efficient system. Heida states that as far as the Qualification Directive and
the Reception Conditions Directive are concerned, he was unable to come up with negative
developments in this respect; however he was also unable to identify any improvements either as far
as the Dutch national system is concerned.

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Having said this, the Netherlands has much to gain from further harmonisation. However the
question is whether we are willing to give up some portion of our national system in order to gain
further harmonisation. That is a question all Member States ask themselves.
The Netherlands has proven itself to be a loyal, but in the CEAS negotiations a somewhat reluctant
partner. Where our national procedures are concerned, CEAS has not brought us any improvements.
In the terms of further harmonisation, little has been reached; one concrete achievement has
however been the establishment of EASO.

Raising the common standard and not harmonisation at any price.

When it comes to solidarity within EU, Heida does not believe there is a lack of political will in
general, but believes that the negotiations have been entered with too little ambition. The aim
should have been raising the common standard and not harmonisation at any price. The Commission
has tried to overcome the shortcoming of the initial CEAS in the second phase. But we, the
Member States, the Commission and European Parliament have not reached our goals of further
harmonisation and substantially raising the standard of protection.
Heida continues to show the way forward. The focus used to be on harmonisation of legislation in
a top-down approach. Heida proposes to throw that focus around and look at the work floor to
establish common practices. A conference like this can help to start this process. Also, Heida invites
the European Commission to visit Member States to gain a better understanding of the challenges
of the work floor and to determine the best practices which may serve as example for raising the
standard in other Member States. Rene Engelsman, Dutch EMN internee, asks how Heida sees these
visits implemented in practice. Heida replies that this is very feasible by referring to other regular
visits by other institutions. The Netherlands will be very happy to receive visits from the Commission
or other institutions.
The keyword of the speech of Heida is solidarity, by stating that he believes there is no such thing
as imposed solidarity. Solidarity among Member States can only exist if a Member State is willing
to give or accept help and readjustment. Heida called upon the EMN to play a role in identifying
the best practices. This will lead to further European integration and that will in the end stimulate
solidarity among the Member States. Maria Hennessy, Senior Legal Officer at the European Council
on Refugees and Exiles (ECRE), points out that for ECRE harmonisation per se is not the main goal, but
what needs to be achieved is harmonisation based on a high standard of protection across Europe.
For the first phase of instruments you can see significant changes in policy due to legislation and
on European level as well. In the future implementation of this new legislation in compliance with
human rights obligations is key. Another question Maria Hennessy raises is one for reflection. She
asks whether these new standards in all the asylum legislation now achieve the obligation they set
out to i.e. to eliminate ambiguity and vague provisions that have been there in the first phase of
instruments. A question to reflect upon is whether these new standards have achieved that.
A shortened version of the speech of Harke Heida can be downloaded from the website of the EMN.

The role of EASO in the harmonisation: Increase

convergence and insure quality within the European
legislative framework.
Next speaker is Franois Bienfait, Head of the Centre for Training, Quality and Expertise at
the European Asylum Support Office (EASO) in Malta.
EASO has been established in 2010 to play a key
role in the concrete development of the CEAS. The
aim is to enhance practical cooperation on asylum
matters, to help Member States to fulfil their
European and International obligations to give
protection to people in need, to support Member
States under particular pressure and to contribute
to the implementation of the CEAS. The CEAS
starts top down with common legislation,
but now that all legislative instruments of the
second generation of the asylum package have
been adopted, it is time to refocus our efforts
on common practice and to contribute to the
accomplishment of the CEAS by a bottom up
approach.

Same cases, same treatment

The final objective of the EASO is that same cases of international protection applications receive
the same treatment, the same safeguards, and receive the same outcome. At the same time, the
experience on the ground can very much feed the legislation and the movement in a certain
direction. It is an evidence based policy input.
The way in which the EASO works is as follows. For Member States to be well prepared when an
influx of asylum seekers take place it is important to have an early warning and preparedness system.
This could be fed from different sides: the Member States themselves who have obviously a lot
of information, but also the Commission, EUROSTAT, Frontex, UNHCR, COI (European Country of
Origin Network), and EASO developed tools such as the quality matrix and the training cockpit. All
these different sources are interlinked and complete each other. All these sources must lead to EASO
producing trend and risk analysis.

Support is our mission

The motto of EASO is support is our mission. This entails three types of support; permanent
support, special support and emergency support. Permanent support means same support
available for all Member States in a structural form. It includes training, COI, quality tools, practical
cooperation workshops. EASO also engages in special support, this is in situations in between normal
situations and emergency support situations. That means situations where a risk has been detected
even if the situation cannot be qualified for the Emergency support mechanism yet. Then the
emergency support, like for the moment with the Operating plan with Greece, where EASO deploys
asylum support teams with specific capacity building tasks. The different supports interlink between
themselves. We noticed that this was needed for countries that face special situations, e.g. due to

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high influx, examples: Sweden needed training of 300 new asylum officers due to very high increase
of asylum applications in 2012. EASO helped Sweden in their plan on training officers for training this
new staff. Italy needs also special support on various fields, as for instance training for judges, which
one will start shortly. Preparatory meetings have already taken place. EASOs contribution about the
new asylum package will for instance be to update all material, in particular training material, that
we already have, to alleviate Member States from this obligation and make them benefit from such
EU certified qualitative tools, Bienfait concludes.

European perspective on the Qualification and

Reception Directive.
A European perspective on the Qualification and Reception Directives is given by Christine
Sidenius, Policy Advisor on Justice and Home Affairs for the Greens/EFA in the European
Parliament, and Sarah Wolff, Senior Associate Research Fellow with the Clingendael
European Studies Programme.

CEAS: brave new world or just

lipstick on a pig?
First, Christine Sidenius takes the floor and raises
the question: CEAS means a brave new world or
just lipstick on a pig? When looking at introducing
the European perspective on the Qualification
and Reception Directives she considers the
question of this conference about judicial reality
or practice. The work of the Parliament is focused
on the judicial form of the directives, and very
far from the practice. However, she immediately
reminds us that parliamentarians are faced very
directly with the voters, and therefore have to
deliver answers to the practical questions when
dealing with asylum.

Recast method
Sidenius explains that, in the context of policy development, a new method was used: the recast
method. This means that the European Commission amends only parts of the existing directives.
Thus, the European Commission identified parts that should be revised and on that basis, the
European Parliament, and then the European Council also, worked on amending the text. This
method has left especially the European Parliament with some frustrations, because there were other
areas of the different directives that they would have liked to work on. She knows that also amongst
non-governmental organisations (NGOs) there has been great frustration with the lack of ambition
that is demonstrated by this method of developing the second generation of these instruments.
She goes on to tell the audience that the Parliament asked the European Commission to identify the
level of implementation of the different directives. The Procedures Directive was the Directive that
had only four or five articles fully implemented in all Member States. Amending and revising existing
directives that have not been fully implemented has been a rather challenging exercise for the
European Parliament, says Sidenius.

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Next, she turns to the goals of the European Parliament when working on the directives and what
they saw as achievements. They identified that the considerable variations in practices of the Member
States is something that needs to be addressed, especially since there is a lot of new case law backing
up that these variations are too wide. The overarching goal of the European Parliament, especially
with regard to the Qualification Directive, but also for the other directives, was defining a common
European asylum policy by 2012. Therefore, the European Parliament adopted a common position
on the five instruments in 2010. The Qualification Directive was then the first directive discussed.
The explanation for this is that the Qualification Directive is not only the one that is most fully
implemented in the Member States, but it is also the least controversial one, according to Sidenius.
The Reception Directive, on the other hand, is probably the directive that had the most challenging
developments within the recast.
With regard to the Qualification Directive the aim was to come up with something that was
implementable. Sidenius believes that this was achieved: the definitions are in place. However, she is
interested to hear what Member States see that has come out of all these negotiations. This is a great
example of the attitude we see throughout the conference: interest in how others see an issue from
their perspective. Sidenius concludes with I would like to end by saying that a European perspective
on the Qualification Directive should be seen and linked with all the asylum directives. Drawing
from the experiences of the Green Group, she presents questions to ask when considering the
achievements: whether the goal of approximation of rights has been achieved, whether the higher
degree of protection standards was achieved, and whether the overall goal to move the Directive
forward has been met. At the end of the day, Sidenius furthermore stresses that we have to look at
the beneficiaries of the system. Considering all of this, she believes that the overall goals have been
achieved.

Next, Sarah Wolff presents more of an academic European perspective on the Qualification
and Reception Directive.
Her first remark is that, when you compare the
asylum package to other areas of justice and
home affairs, it is one of the more liberal areas.
She stresses the importance of comparative
analysis and the need for the establishment of
best practices, not only for the implementation of
the existing instruments, but also when thinking
of instruments that are still missing.

What are the gaps? What are

the missing tools?
Furthermore, Wolff believes that we should think
beyond 2014: a new Parliament will come in then, and the Stockholm Program will be in need of a
successor. She goes on to remind the audience of what the first generation of the Reception Directive
was about. The variations of the Member States in the application of this Directive showed a few
problems. For example, there were problems with issuing the documents stating the name and status
of the asylum seeker. Also, there were a lot of issues with vulnerable groups and unaccompanied
minors. Finally, applicants for subsidiary protection were not included in the first generation of the
Directive. Trying to fill those gaps, there was the recast. According to Wolff, few improvements were
made, amongst which on detention rules, access to free legal assistance and representation. The need
of detention in special reception facilities can be named an improvement, but Wolff indicates that
it remains debatable due to the fact that prison accommodation is still allowed, under the condition

8
that the applicant is kept separate from criminals. Access to employment is interesting too, as this
now has to be granted after nine months instead of twelve months after lodging the application.
She remarks that there were proposals for a shorter period of six months though. In terms of special
reception vulnerable persons and unaccompanied minors are taken into account, and mental
healthcare is explicitly included. Furthermore, the Directive is now applicable in extraterritorial
waters and transit centres. But, Wolff feels that there still are some gaps, for example when
considering access to employment. This has definitely improved, but we still see different practices:
some Member States grant access to employment after six months, others after three months. The
NGO-community has also raised several problematic issues, such as the question whether the access
to employment is effective in practice and the fact that asylum seekers can still be kept in prisons. As
she is asked to conclude, Wolff turns to the European asylum policy beyond 2014. The need to focus
on implementation, which was already highlighted,
is important indeed, but Wolff believes that we need
to be a bit more proactive. When you look at the
Stockholm Program and want to think beyond that,
Wolff says that you should think of what the missing
tools and gaps are. An issue has been, for example,
that there have been problems in evaluating the
changing instruments. On the Reception Directive
specifically, the ECRE has recommended furthermore
that the assessment of the quality of detention
centres should be integrated in the early warning
mechanism that was mentioned earlier. Wolff
is therefore interested what EASO has to say on
this and whether it could maybe cooperate with
academics or NGOs. Another question that we
could think of is that of gender: are men and women
truly equal in EU asylum policies? Maybe not,
Wolff says. She concludes by stating that she thinks
that the whole methodology of Stockholm should
be revised in general and emphasizes the role the
European Parliament might play in this.
After these presentations, there is room for questions and/or remarks on these two presentations.
Maria Hennessy (ECRE) congratulates the Parliament on the new standards set in the Qualification
Directive. She comments that it is important to keep in mind the jurisprudential developments in this
field including rulings of the Court of Justice of the EU and the European Court of Human Rights.
Member States must also bear in mind the provisions of the Charter of Fundamental Rights when
applying these new standards to ensure compliance with fundamental rights. It is key that decision
makers are aware and apply the Court rulings in this field.
Another question from Renger Visser, Director Asylum of the Dutch Immigration and Naturalisation
Service (IND), is directed to Christine Sidenius and concerns the gap between legislation and practice.
The new standards have to be implemented in a period of economic crisis. Has Parliament discussed
how to implement these standards when the original ones are not even implemented by some
Member States? Sidenius answers that this definitely has been a topic of discussion, and that costs
have been an often-repeated argument from the side of the European Council against certain
improvements, especially in the case of provisions of the Reception Directive.

NATIONAL EXPERIENCEs:
QUALIFICATION
DIRECTIVE
The Swedish experience
Presentation Sweden by Bernd Parusel, Expert for the Swedish National Contact Point of
the EMN at the Swedish Migration Board, and Maria Lindgren Saltanova, Deputy Director
at the Division for Migration and Asylum of the Ministry of Justice of Sweden.
The first speaker on the Qualification Directive is Bernd Parusel from EMN Sweden. He starts by
stating that Sweden is one of the major destinations of asylum seekers in Europe. Sweden has seen a
very strong influx in 2012. When we look at the harmonisation concerning the Qualification Directive
in Sweden we see that the granting of protection in Sweden is fully harmonised in accordance with
the EU Qualification Directive, but there are also complementary national bases for protection.
The granting of refugee status in accordance with the Geneva Convention and the granting of
subsidiary protection are harmonised forms of protection in Sweden. As a complement to the
granting of subsidiary protection in accordance with the Qualification Directive, there are also
national forms of subsidiary/humanitarian protection covering grounds of other severe conflicts and
environmental disasters. In 2012, 95.5 % of all residence permits granted for subsidiary protection
was granted on grounds covered by the Qualification Directive. Only 4.5 % was granted on the basis
of complementary national provisions. In exceptional cases, a residence permit can also be granted
on grounds of exceptionally distressing circumstances (non-harmonised). This applies for instance to
people who suffer from deceases or unaccompanied minors who cannot return. Resettlement, which
can be seen as a complement to the asylum system, is undertaken on the basis of national practice, in
cooperation with the UNHCR.
Parusel points out that the number of asylum seekers who have been granted residence in Sweden
has increased. During the last six years the granting of protection has increasingly been on the basis
of the Geneva Convention and under subsidiary protection. The number of times national forms of
protection have been granted has decreased.

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Parusel tried to answer the central question of the day and referred to Eurostat statistics on asylum
decisions that show that in the last years the use of protection on the basis of the Geneva Convention
has tended to increase all over Europe. Looking into decisions on asylum applications from certain
countries of origin, for example Afghanistan, a clear tendency towards an approximation of national
decision-making can be observed. At the same time, however, the Eurostat statistics show that there
is still considerable variation between national practices.
Next is Maria Lindgren Saltanova from the
Ministry of Justice of Sweden. Lindgren Saltanova
wants to underline that the CEAS is an objective
for Sweden and strongly supports the idea of
it. According to Lindgren Saltanova, Franois
Bienfait puts it well by saying same cases same
treatment. Statistics show that we are not there
yet. Sweden believes that the Qualification
Directive and the other asylum directives are
important steps towards harmonisation. You
cannot do this in 10 years, but obviously you have
to start somewhere.

Raising the standards

Lindgren Saltanova wants to react on Harke Heidas statement. For Sweden in the negotiation
phase of the Qualification Directive it was not only about damage control but also to make sure
that standards were raised. For instance approximation of rights between those granted subsidiary
protection and refugees. The Directive is meant to take a step towards strengthening international
protection in the European Union (EU) and reduces differences between Member States. Further it
increased the focus on the criteria for identifying persons in need of protection in the Member States
and on benefits for persons granted international protection in the EU.
Lindgren Saltanova goes on to elaborate on some of the main changes that the Directive has made in
the Swedish asylum system. First of all it introduced the status concept, refugee status and subsidiary
protection status in the Swedish Aliens Act. The central concept in the Swedish asylum legislation has
been the residence permit, not the status. Previously it was possible to separately apply for a refugee
declaration, but it was not automatically granted as is the case today if you are a refugee. Secondly two
categories of subsidiary protection were established; subsidiary protection according to the Directive
and persons otherwise in need of protection (already existing national protection category).
Lindgren Saltanova concludes her presentation by answering the central question: The
Qualification Directive is an important step towards harmonisation, being one of the corner stones of
the CEAS. We need to work a lot more to achieve a CEAS. Implementation of current legislation is key.
Practice among Member States including eligibility criteria for international protection needs to
be further harmonised. We need to analyse our own methods and choices in practice.
Italy wants to share two impressions. Nadan Petrovic, international official with IOM, states that he
sees much similarity with Italy. The difference is that granting humanitarian protection is a very high
portion of the asylum seekers in Italy. Italy was very generous in granting recognition to refugees
last year during Arab Spring. Second is that concerning procedures Petrovic says, same cases, same
treatment. He has doubts on reception and certainty that it is impossible to fully integrate within
Europe. We come from different histories and backgrounds, says Petrovic.

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Bjorn Decoster, Dutch Migration Policy department, agrees with Sweden. First of all the Netherlands
were very ambitious with the Qualification Directive concerning benefits. The Netherlands wanted
that refugees will get the same benefits under subsidiary protection as under refugee status. That has
not been achieved yet. Although some improvements have been made, we could have been more
ambitious. Our ambition should be to now put in practice the implementation. We should speak
with Member States to give asylum for instance to Syrian refugees. Qualification of these refugees
shouldnt be a point of discussion.

The Polish experience

Presentation Poland by Joanna Sosnowska, National Network Coordinator within the
Polish National Contact Point of EMN at the Migration Policy Department of the Ministry of
Interior of Poland.
Polands history in granting international
protection is very short. This is different from
other states present today. That is why Poland
when confronted with the first influx of refugees
started to cooperate with UNHCR. Since then
Poland has made great efforts to facilitate
refugees by stating national legislation in
accordance with international law. The will
of Polish government from the nineties on
was presented during the Balkan wars where
temporary protection was offered.

During the negotiations and the procedures prior
to the accession of Poland to the EU in May 2004
new acts to secure the position of foreigners in
Poland were concluded. In the Act of 13 June 2003
on granting protection to asylum seekers within
the territory of Poland amendments introduced changes to national law. First of all the subsidiary
protection was introduced. Also the concepts of relocation and resettlement were introduced.
Further Poland has strengthened the principle of non-refoulement and increased aid for foreigners
residing in appointed centres for foreigners.

Not only harmonise legislation, but also harmonise practice

In general terms Poland has seen an increase of asylum applications. Lately, Poland has noticed an
important change in the diversity of nationalities applying. While asylum seekers still predominantly
come from Russia (mainly Northern Caucasus region), Georgia and Belarus because of the political
situation in those countries and the existence of the illegal migration channels through Belarus,
Afghanistan and Syria also emerged as important countries of origin. Sosnowska reminds the
audience that due to geographical matters the number of foreigners applying for international
protection differs between the EU countries. The CEAS is very much needed, not only to harmonise
legislation, but also to harmonise practice. EASO could play a role in the harmonisation of practice.
Furthermore there is tendency to give more international protection instead of national protection.
Interesting was that Sosnowska mentioned that missions are organised to countries of origin. We
have to be careful because Member States have a lot of information and so does EASO. We have to be

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aware that we do not duplicate work. The costs of harmonisation are high and if we could do things
together, it would be more effective. We should coordinate all the initiatives. Maybe this would be a
role for EASO to play, concludes Sosnowska.
The Italian representative Nadan Petrovic states that Italy is quite in the middle between Sweden and
Poland. Petrovic sees a similarity in increase in requests. Also interesting is that Poland has experience
with temporary protection, which is also the case in Italy. Differences are the different nationalities
and the fact that Poland has quite homogenous groups in comparison to Italy. In general what
impressed me positively is that Poland has a clear agenda on what the direction should be. Italy is
pleased and interested to see how Member States are doing their best towards a CEAS.

Panel discussion and questions from the audience

With Christine Sidenius (EP), Franois Bienfait (EASO) and Maria Hennessy (ECRE).
Franois Bienfait starts the discussion by clarifying what the role of EASO is and should be. In the
future EASO will probably start developing some kind of policy guidance. But always with the
limitation that it has no competence on the individual asylum cases. Another important tool for
harmonisation is the common training system. It was for instance seen in Finland that since they
started to train their staff with the EASO training module on inclusion, the proportion of Refugees
versus beneficiaries of Subsidiary protection started to increase significantly, producing a situation
much more in line
with the prescriptions
of the International
and European
Refugee Law. Another
issue mentioned
today was a new role
for EASO to gather
information about
countries of origin.
There are not enough
resources for EASO
to gather itself all
information but the
dynamic is to coordinate the work produced by the Member States, UNHCR, NGOs etc. and organise
the content of this information on the COI portal. Also to set rules on how to produce and to use this
information, and how to build COI experts networks to reach a multiplier effect.
Krystyna Komorniak, Senior Specialist in the Department for Refugee Proceedings in the Polish Office
for Foreigners, states that Poland wanted to have a fact finding mission to Afghanistan. But security
was the reason to stop it. Still the Member States should have a platform to investigate the possibility
to combine efforts and results. In practice we already use each others information so it is already
done and proven to be very useful.
Alexander Sorel, employee of the Permanent Representation of the Netherlands, was present during
most of the negotiations of the Qualification Directive. He states that Sweden and the Netherlands
did fully agree during the negotiations, but the draft changed because other countries did not agree
on certain terms. The aim of the second phase of the CEAS was to have same results in same cases. The
Stockholm Program ends in 2015. What do you think should happen in 2015? Should we step over the
fatigue of negotiations, is that noticeable in Brussels?

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Christina Sidenius responds confirming the policy fatigue, but when you look at what parliament is
saying on the next step, you see a tendency towards wishful thinking. An idea is to in the future have
common application centres. There is still interest for new ideas, but now more humbled by the fact
that current legislation has not been implemented yet. The overall idea is that first this relatively new
legislation should be implemented correctly before starting a new phase.

Negotiation fatigue
Monika Smit gives the floor to Maria Hennessy from ECRE and asks her how she thinks the Member
States have implemented the Qualification Directive so far. Hennessy first wants to respond to
Alexander Sorel. Maria Hennessy noted that earlier in the day it was remarked that we could have
been more ambitious in this second phase
so I wonder what did happen during the
negotiations. In a way it feels like a missed
opportunity because looking at the all of the
Directives together, more could have been
achieved and the recasts now have only led
to including obligations from case law of the
Courts that Member States were bound to
anyhow. It is important that Member States
continue to adhere to new judgments in
this field. ECRE is now starting a project on
evaluating the practice surrounding two legal
concepts in the Qualification Directive the
actors of protection provision and the internal
protection alternative provision. ECRE will
be contact with relevant stakeholders in the
countries concerned to gather good practices
and information.
Smit states that implementation has already begun. It is not now just starting. She asks the panel
if they are satisfied with Sweden and Poland? According to Hennessy, it is good to see that there is
not a great reluctance to use the new statuses and rely jus ton national statuses. Also important is to
state the obvious, that there is an obligation for Member States to implement the directive. Solidarity
should also extend to the refugees concerned and not just between Member States.
Andro Stelk (IND) asks the panels position on repatriation of asylum seekers who have not been
granted status. Is that a responsibility for the Member States or does one think EASO has a
responsibility? Franois Bienfait states that referring to EASO Regulation repatriation is obviously not
at the core of the tasks to act on. Frontex, another EU agency, is directly involved in this issue. However,
there is certainly not a clear and definitive
distinction, it is not always so easy to determine
where the Asylum field starts and where it ends.
And there is certainly the need for a good
collaboration between EU Agencies such as
Frontex, EASO and the FRA. Christine Sidenius
does not think it is a task EASO should have,
since already today, according to the newly
revisedFRONTEX mandate, coordination and
facilitation of return operations by Member
states, is a task for FRONTEX.

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NATIONAL EXPERIENCES:
RECEPTION DIRECTIVE
The Italian experience
Presentation Italy by Jos Oropeza, International Official with IOM, Director of the
Coordinating Office for the Mediterranean countries and Chief of Mission in Italy and
Malta. IOM Representative to the Holy See, and Nadan Petrovic International Official with
IOM Italy, Senior specialist for integration of asylum seekers, refugees and migrants at IOM
After a coffee and tea break, it is time to continue
with the national experiences of Italy and the
Netherlands with a focus on the Reception
Directive. Jos Oropeza, representative of the
International Migration Organisation (IOM), gives
the first presentation on the experiences of Italy.
He shortly explains the function of the IOM, and
then turns to Franois Bienfait to congratulate
EASO on introducing early warning, and links this
to reception facilities.

Should and could we have

known that migrants were
coming in huge numbers?
Considering the particularities of Italy, he says, this region has seen enormous flows of migrants.
He wonders whether we should and could have known that migrants were coming in such huge
numbers, for example during the conflict in Libya. He continues by remarking that the only option
these people have when arriving in Italy is to ask for asylum. Due to the different waves of huge
influxes, Italy sees itself confronted with a collapse of reception facilities when these are extremely
high. In terms of numbers, we should think of 60.000 migrants arriving in Italy in three months. The
costs of reception facilities are therefore high. But, this region will continue to face important
movements of people. People flee from persecution, people flee from poverty, and people flee from
national disaster. Regulating migration and asylum therefore is a necessity according to Oropeza.
That is why IOM works with the Italian government, but also with Save the Children, UNHCR and
the Italian Red Cross in order to provide adequate reception of migrants to Italy. In this project,
they screen for vulnerable people in reception centres, such as victims of human trafficking. He
concludes his presentation by considering that harmonisation of standards is difficult due to the
severe economic crisis. However, he does reaffirm the need to standardize procedures, policies and
reception.
Nadan Petrovic, who works as an international official for IOM, takes the floor to present the
application of the Reception Directive in Italy and influence of the formation of CEAS on the Italian
policy regarding reception. As for the latter, he says that Italian policy has definitely been influenced,
in a positive way. He mentions for example the withdrawal of the geographical reservation of Italy
to the 1951 Geneva Convention, but also the application of the Dublin Convention that started in

15
1997, and the Tampere process that Italy took very seriously by creating a reception system. Petrovic
explains that it is a system of open reception centres, managed by the municipalities, providing a full
range of services. These services can include courses in Italian, cultural orientation, social support,
etcetera. Later, closed centres for asylum seekers were enacted, which were meant to provide
reception facilities to asylum seekers that arrived illegally in Italy. This was the reception system
before the Reception Directive was ratified in 2005. Italy applied the Directive entirely through the
national system of open centres managed by municipalities. In this sense, the Directive was nothing
new really, as Italy provided quite a high level of facilities already in these centres. However, some
new elements were introduced. Petrovic considers the following three to be very important: specific
projects for vulnerable groups of migrants,
the possibility to access employment after six
months, and the fact that from that moment
on reception of asylum seekers in Italy is
mandatory. After the Reception Directive,
Italy created another system of reception
centres, so-called CARAs. Thus, there are
now two systems for reception in Italy. They
more or less have the same level of services,
although the new CARAs are much bigger
in order to provide the reception facilities
that the Directive requires. Also, it should
be noted that even another directive, which
was not related to reception, was used to
improve the Italian system.

The process of CEAS has been extremely positive.

Petrovic concludes by emphasizing that Oropeza and himself are no government officials, and
therefore cannot say much about the governmental evaluation of CEAS. However, in his view, the
process of CEAS has been extremely positive. Even though the Italian reception services in some
centres already met the standard of the Reception Directive to a large extent, Italy used - almost
desperately - the European directives to justify new legislative measures for asylum seekers and
refugees; the European directives are used to pass national laws.
In their reaction on the presentations of the national experiences of Italy, the Swedish
representatives acknowledge that it can, at times, be hard to cope with a great influx of asylum
seekers. They use the example of Syrian asylum seekers in Sweden last year. Bernd Parusel explains
that it was hard to ensure that everyone in need of it had housing in that situation and that they
improvised to cope with it. In relation to that Parusel tells the audience that one element of the
reception system in Sweden is that everyone who is in need of it is provided with accommodation, but
that asylum seekers can also arrange this themselves. This results in approximately 30% of the asylum
seekers arranging for their own accommodation and stay with relatives who already live in Sweden,
for example, even when they do not get additional money to pay the rent. Furthermore, Parusel
remarks that the geographical location of a country can play a role as far as the number of asylum
applicants is concerned, but it is interesting that Sweden is receiving many asylum applications while
its geographical location does not seem to justify that.
The Polish representatives find it hard to compare the situation of Poland as more of a transit country
to that of Italy with its enormous influx. Joanna Sosnowska wonders about the early warning system:
how can we prepare, besides having the knowledge that people from a certain area or country might
flee to Europe?

16

The Dutch experience

Presentation the Netherlands by Andr Baas, Strategic Advisor on international affairs
within the Dutch reception organisation COA (general reception issues and resettlement,
working under the responsibility of the Dutch Ministry of Security and Justice), and
Janine Sterkman, Senior Policy Officer at the Dutch Ministry of Security and Justice of the
Netherlands
Turning to the Dutch experiences with the Reception Directive Andr Baas presents the reception
system in the Netherlands.

Take two steps back

Baas has visited different EU Member States and sees a great diversity in reception facilities. On this
basis you see two basic things. When speaking with the people working in practice about the
implementation of the Directive, they will usually say that implementation is complicated due to
national circumstances. Secondly, the Reception Directive tells you what you should do, but it does
not say how that should be done. These are big challenges according to Baas. However, he does not
believe that it would help to recast en negotiate the Directive again. He thinks it would be best if we
would take two steps back: talk to the people working with the Directive in practice and identify
best practices, before going back to the drawing table.
Giving these remarks to the audience as
food for thought, Baas continues with a
background on the rather unique reception
system in the Netherlands. It is unique due to
the fact that the system is 100% centralized
and is supervised by one organisation: COA.
All persons who are still in the formal asylum
procedure are entitled to reception facilities.
He explains that the use of these facilities
is a right, and not an obligation, but that
in daily reality 99,9% of the asylum seekers
use the centralized system. When relating
the reception facilities to the asylum system,
Baas mentions that the idea is that the
asylum seeker moves through the reception
system depending on the course of his or
her asylum procedure. In order to make this
work, cooperation is very important. Therefore, different organisations are working together in
the asylum-chain, such as COA, IOM, the Dutch Immigration and Naturalisation Service (IND), the
Legal Aid Board (Raad voor de Rechtsbijstand), the Dutch Council for Refugees (Vluchtelingenwerk)
and the police. This shows that NGOs are also involved in the Dutch asylum and reception system,
as it is about the best for the asylum seeker. When looking at the level of reception facilities, the
other cooperation-partners around COA include even more organisations, which are, for instance,
specialized in activities for children, education, etc. Using PowerPoint sheets with data, Baas shows
the audience situation in the Netherlands now. Ten years back, the Dutch reception centres had
some 85.000 residents. At that time, we were wondering how we were going to manage, says Baas.
However, due to legislative changes and amnesties, the numbers went down. The current number of
residents is 14.800. When speaking about the nationalities that are most present in the Dutch system,
the top-5 (2008-2012) consists of Afghanistan, Iraq, Somalia, Iran, and Armenia. He notes that these

17
are quite comparable to Sweden, but very different from, for example, the nationalities of asylum
seekers in Belgium. Baas believes that it is very interesting to compare these kinds of data and look
for more cooperation.
Upon the Dutch experiences with the Reception Directive is further elaborated by Janine Sterkman,
Senior Policy Officer at the Dutch Ministry of Security and Justice. She starts of by stating that
the reception facilities in the Netherlands are of a high standard and all centralized. Due to that
high standard, the Netherlands could support the aim of the original proposal of the European
Commission, which was to make the provisions of the current Directive more binding, to state the
provisions at a higher level and to harmonise those provisions at that higher level. She says that
this was in the interest of the asylum seeker, but also prevents asylum shopping. Using the example
of access to the labour market, she explains this further. The Netherlands welcomed the original
proposal of the European Commission to grant access to the labour market for asylum seekers six
months after the application for asylum,
because the Netherlands already granted
access after six months. However, this
proposal turned out to be quite controversial,
because many Member States feared a
greater influx of asylum seekers. The revised
proposal therefore states that an asylum
seeker can be granted access to the labour
market nine months after the application for
asylum. Also, the Member States can decide
on conditions in accordance with national
law, provided that there is effective access to
the labour market. Although the Netherlands
supports and uses the time limit of six months,
it has stressed that Member States must have
flexibility in stating conditions concerning
access to the labour market. Sterkman
mentions the importance of a good quality of
life for the asylum seeker, which includes daily activities, but this can also concern other activities than
labour, like f.i. voluntary work activities related to integration or return. In the Netherlands an asylum
seeker can, according to the national conditions, work for 24 weeks in a year. This time limit has
been set to prevent a right to unemployment benefits for the asylum seeker. Turning to the question
whether the Reception Directive has served its purpose, Sterkman sees that the Directive resulted in
many positive changes, such as the expansion of the scope of the Directive to subsidiary protection
and the fact that access to the labour market must be granted nine months after application for
asylum (instead of a year) now. Furthermore, the Netherlands was in favour of the reference to
the standard of living for nationals with social benefits, when deciding on the amount of material
reception conditions, but the revised proposal says that Member States may grant less favourable
treatment due to objections of many Member States. Sterkman continues with some more positive
changes that are a result of the Reception Directive, including extended provisions concerning
detention and more attention for vulnerable groups. Even though the Reception Directive has
resulted in positive changes, the negotiations were quite difficult and a new, revised proposal was
necessary. For the Netherlands this meant that they did not have to implement big changes, as
the level was good already. Due to the limited amount of time left for her presentation, Sterkman
decides to skip to the question what should be changed in the future?
When working on the implementation of the Reception Directive, Sterkman thinks that it is
important to go for practical cooperation and exchange of best practices, that implementation

18
is supervised, and that Member States truly exchange their best practices to prevent a Europe at
different velocities. Unfortunately, there is no time for Sterkman to talk about the reception of
minors and detention, but for more information one can refer to her Powerpoint sheets.

Go for practical cooperation and exchange of best practices

Monika Smit invites the representatives of Italy, Poland and Sweden to react on the presentations on
the system in the Netherlands.
The Swedish representatives comment on the access to the labour market, which is granted to asylum
seekers in Sweden from day one onward. Maria Lindgren Saltanova explains that there are some
conditions though: you have to cooperate to establish your identity and it must not be a Dublincase or a manifestly unfounded application. This has been the system since 2010 and Sweden did
not experience any negative effects so far. We did not see that there is a connection between the
possibility to work and the influx of asylum seekers, Lindgren Saltanova says. She also mentions that
when the asylum application is rejected, the asylum seeker of course does no longer have a right to
work if he or she does not cooperate to leave Sweden. However, he or she can apply for an ordinary
work permit in Sweden if he or she manages to find a job and applies within two weeks after the final
rejection.

The Polish representatives also consider the access to the labour market and explain that access is
granted on the day that the (positive) decision on the asylum application is issued. When no decision
has been issued within six months, the asylum seeker is granted access to the labour market when he/
she requests so. How the right is implemented in practice, depends on the Polish labour market and
characteristics of the local labour market. Besides the benefits that asylum seekers receive, they may
always work for the reception centre. Furthermore, they get help from social workers to get a job. She
also remarks that the benefits that asylum seekers receive from the government are not very high,
which results in asylum seekers wanting to earn money to support their stay in Poland. She concludes
by mentioning that not all reception centres are governed directly by government, but that some are
outsourced. Using general procurement Poland tries to better the conditions in these centres.

Investing in migrants will pay off

On behalf of the Italian representatives, Oropeza emphasizes the need for strategic thinking and
says that investing in migrants will pay off. He uses the example of Germany, where Turkish people
returned to Turkey and invested there, which opened up business opportunities for Germany.

19

Panel discussion and questions from the audience

With Franois Bienfait (EASO), Christine Sidenius (EP) and Sarah Wolff (Clingendael)
Wolff kicks off the discussion by stating that she sees a socialization of EU asylum norms beyond the
more formal negotiations; what she calls some sort of positive, normative entrapment. Going back
to compliance with directives, Wolff thinks that it would be important - within this positive evolution
- to identify what the veto points and veto players are in the Member States that might somehow
block the implementation of the directives. She believes that it will be interesting to see what lessons
we can draw from this socialization of EU asylum policy and what best practices can be shared. She
furthermore emphasizes the importance of looking at asylum and migration from a more global
perspective and that lessons drawn at the EU level might be shared with, for instance, countries of
origin.
Sidenius remarks that the negotiations on the Reception Directive have been the most controversial
ones out of all the negotiations. However, the rather positive experiences in the different Member
States are encouraging for the implementation of the second generation of the Directive.
Bienfait thought it was very interesting that the conditions of reception in Sweden and the
Netherlands are of a high level, even though there are differences in the implementation. He
mentions the difference in when access to the labour market is granted as an example. Turning
to what EASO can do in the context of the Reception Directive, he says that they are open to
suggestions, all being question of priorities, due to limited resources, and can imagine that mapping
studies or connecting and sharing best practices might certainly be helpful.

20

CONCLUSION AND
CLOSING REMARKS
There is no way back, we have to move forward
Monika Smit wraps up and reminds the audience of the central question of the conference: the
Common European Asylum System, a judicial reality or practice? Smit is unable to answer this
question tough. Drawing from the different presentations, questions and discussions she thinks
a lot has been achieved, but there is still a lot to be done. She summarizes that now is the time for
implementation and that there is hope, even against the backdrop of the current economic crisis.
There is no way back, we have to move forward, she says. In conclusion, she stresses the need for
cooperation, sharing information and best practices, and looking at the daily practice.
The PowerPoint presentations can be downloaded from the website of the EMN.

21

CONSIDERATION
By Dr Flora Goudappel, Associate professor European Union law, Jean Monnet chair in
European Trade Law in the Overseas Territories, Erasmus School of Law, Rotterdam

At the EMN conference, both the differences and similarities in application of the Qualification
Directive and the Reception Directive were discussed. From an academic point of view, it all seems
to be crystal clear: who has to do what when under which circumstances. When applied in practice
within the national legal systems of the Netherlands, Sweden, Italy and Poland, the national
constraints and choices appear to differ widely. Yet, after questions and answers, it was clear that all
systems operate from European Union bases and need each others support.
The European Union influence on practices in the national systems has been very large. The systems
already in operation before CEAS had to adapt because of the Qualification Directive and the
Reception Directive. A relatively new asylum system in a country like Poland, on the other hand, has
benefited largely from the experience of other Member States in CEAS. While the influx and the
origin of influx differs per country and the solutions correspond these differences, a CEAS system is
necessary for the proper functioning of both the national systems and the European system.
The Qualification Directive leaves room for interpretation for the different statuses, especially the
status attached to temporary protection and subsidiary protection may differ. Still unclear is whether
this is a good or a bad development: is more harmonisation necessary or not? Such differences
do not seem to play a part for the application of the Reception Directive. Most problems occur in
circumstances of what can be labeled a semi mass influx, i.e. when many asylum seekers apply for
asylum in a short period of time or all flee from the same country. Examples are the large number of
Syrians applying for asylum in Sweden last year and the influx of Tunisians in Italy during the Arab
Spring. Are the requirements laid down in the Reception Directive sufficient to deal with situations
like these?
Overall, the question remains whether the in depth discussion of the two directives leads to the
conclusion that CEAS needs to be re-negotiated as a package deal or not. Practice shows that
differences in application need to be possible so that Member States can adapt under minimum
rules to sudden needs, and also have an option to interpret the European Union standards within
their own political reality.

22

The EMN National Contact Point of

the Netherlands
The EMN National Contact Point of the Netherlands is located at the Immigration and Naturalisation
Service Information and Analysis Centre (INDIAC). This unit is part of the Dutch Immigration and
Naturalisation Service (IND) of the Ministry of Security and Justice. Information: www.ind.nl

Address
Dr. Colijnlaan 341
Postbus 5800
2280 HV Rijswijk
0031 (0)70-779 4879/5431
EMN@ind.minvenj.nl

Internet
Official website European Migration Network: www.emn.europa.eu
Website EMN National Contact Point of the Netherlands: www.emnnetherlands.nl