J U R I D I C U M
Harmonization in the European Union through Common
Asylum Policies
Comparing Spain and Sweden
Nasim Soleimanpour
Spring 2015RV4460 Legal Science C (Bachelor Thesis), 15 ECTS Examinator: Anna Gustafsson
I
Abstract
This essay concerns asylum and asylum policies of the European Union. The main purpose of the thesis has been to review if asylum and asylum policies are harmonized within the Union. The purpose has been made by a comparison of Spain and Sweden in the area of EU asylum policies. The comparison has been accomplished by reviewing legislation as well as case laws of the compared States. The aim of the thesis has also been to understand what effect further development of EU asylum policies may have. Furthermore the essay treats the importance of common asylum policies and the role of the EU in the area of migration and asylum. This was carried out though a review on history and developments on EU asylum.
The questions answered in the thesis are the following: Is the EU harmonized when compar-ing Spain and Sweden in the area of asylum? Is further development of EU asylum policies an appropriate aim regarding the history of EU asylum cooperation? Would Spain and Sweden maintain better asylum conditions in the absence of EU policies or EU cooperation?
More over the essay has also led to an understanding of the comparative method of app-lication.
Keywords: EU, harmonization, asylum and migration, policies, comparison, Spain and Sweden.
II
Abbreviations
1967 Protocol 1951 Convention AFSJ Amsterdam CAR CAT CEAS CJEU Commission Council ECHR ELN EP ESS JHA Lisbon Treaty MoI OAR SMB TEU TFEU UDHR1967 New York Protocol Relating to the Status of Refugees 1951 Geneva Convention Relating to the Status of Refugees Area of Freedom, Security and Justice
Treaty Treaty of Amsterdam
Centros de Acogida a Refugiados
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment Common European Asylum System
Court of Justice of the European Union European Commission
Council of the European Union
European Convention for Protection of Human Rights and Fundamental Freedoms
Ejército de Liberación Naciona
European Parliament
Ministro de Empleo y Seguridad Social
The Area of Justice and Home Affairs Treaty of Lisbon
Ministerio del Interior Oficina de Asilo y Refugio
Swedish Migration Board Treaty on the European Union
Consolidated version of the Treaty on the Functioning of the European Union Universal Declaration of Human Rights
III
Table of Contents
Abstract………I Abbreviations ………II Table of Contents ……….III
1 Introduction ……….1 2.2 Aim ……….1 1.1.1 Key questions ………2 2.2 Delimitation ………2 2.2 Method ………3 1.3.1 Material ………..4 2.2 Disposition ………..4 2 Background ………..5 2.2 International regulations ……….5
2.1.1 The 1951 Convention and the 1967 Protocol relating to the Status of Refugees ….5 2.1.2 Definition ………..6 2.2 European Union ………..7 2.2 Spain ………...9 2.2 Sweden ………..11 3 Case law ………..12 3.1 Spain ...………..12 3.2 Sweden ………..14 4 Analysis ………….………..16 4.2 European Union ……….16 4.3 Comparison ………19 4.3.1 Defining Refugees ………...19
4.3.2 Certain general features of the asylum procedure ………...21
4.3.3 Comparison of Case Law ………24
4.4 Harmonization ………27
5 Conclusion ……….….30
1
1 Introduction
Immigration and asylum have long since been of main concern for States, as the character of the subject requires transnational collaboration. Today its significance has shown to be greater than ever before as the collaboration in asylum matters has never been bigger. This collab-oration rose in the mid-1980s and since then it has gradually increased together with the number of immigrants and of asylum seekers. The concerns for the external borders of the Union, as well as the immigration and asylum policies, lie in connection with the disappear-ance of internal borders between Member States. As the free movement of persons was deve-loped in the EU, immigration and asylum policies in the Member States began to have a different significance.1 Throughout various measures, such as the adoption of different regulations and programs in the European Union, the importance of promoting and leading to a common European immigration and asylum policy as well as maintaining freedom of movement has been indicated. Among these the policy field of the “Area of Freedom, Security and Justices” (AFSJ) have had a significant importance. The AFSJ was established to provide maximum protection for the EU citizens and to ensure free movement within the Union. It emerged for the first time from the Treaty of Amsterdam, but it is based on the Tampere Programme where the Common European Asylum System (CEAS) was established. The CEAS is one of the most important accomplishments for harmonizing immigration and asylum policies, as it was the first five-year program for the policy area of Justice and Home Affairs.2 The two following programs have had a rather complex task, as the reality on developing common policies is quite complicated in the field of asylum. The journey towards harmonized policies on asylum law has been long and still much more needs to be accom-plished.3
This essay is about the established asylum policies within the European Union and concerns about the harmonization in the Union in the area of asylum. The importance of harmonizing immigration and asylum policies is fundamental in the context of the AFSJ, and therefore the discourse of this essay is appropriate to cover as it concerns the large immigration flows and asylum seekers, that continue to arrive to Europe. It has not always been clear for the Member States to cooperate in the area of migration and asylum. The cooperation in the area of migration and asylum was a consequence due to developments of freedoms within the EU. However there are still distinct difficulties for Member States to take EU policies into more serious consideration over national regulations. Therefore immigration and asylum is an area that constantly requires new knowledge as it changes with time and occasion.4
1.1 Aim
The challenges of the subject and chance for further developments mentioned in the intro-duction, form the purpose and aim of this essay. The work and cooperation between the Member States of the Union has a future of further extension and development. As the cooperation in the EU has also become more significant, the matter of who takes responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi- responsi-
1 Fry Journal of Transnational Law & Policy pp. 97-99.
2 The Area of Justice and Home Affairs (JHA) was first introduced by Title VI of the Maastricht
Treaty and belonged to the third pillar. It was later transferred, by the Amsterdam Treaty, to the competence of the European Communities and thereby was absorbed into the AFSJ. The area of JHA concerns the cooperation and development in criminal and justice fields by e.g. creating different agencies and making policies.
3 Collett, Future EU policy development on immigration and asylum: Understanding the challenge, pp.
1—2.
2 bility and in what amount, has gained a major importance. The rights to asylum have also been a broader issue debated as immigration and asylum streams continue to flow to Europe. A Europe that is in a state of continuous reforms when it comes to immigration and asylum policies. Therefore the main objective of this essay is to understand the common policies on asylum within the European Uniom, with the aim to understand what legal responsibility Member States have, how the policies are implemented and how they are achieved. Thus with the aim to understand if the compared States fulfill the minimum standards for the identification and protection of refugee laid down in EU asylum policies.
To fulfill this aim, I will review the Spanish and Swedish legal framework concerning asylum. Why I specifically have chosen to compare Spain and Sweden is because of their similarities, as they are both civil law countries and EU Member States, and because of their differences, in regards to history and geographical location. Also the States have quit different economical situations and are thereby facing different challenges, hence having both com-parable similarities and differences. The comparison between Spain and Sweden aims also at understanding how harmonized asylum policies are in the Union. Hence allowing to understand whether an asylum applicant with comparable case background, in Spain and Sweden, will receive identical decisions on his or her application in both States. Moreover, the idea is to determine if Spain or Sweden would achieve to maintain better conditions on asylum and for asylum seekers without considering EU policies or in absence of EU cooperation. Thereby, looking at if the harmonization approach brought by EU is a setback for Spain or Sweden.
1.1.1 Key questions
The purpose of this essay is to answer these questions:
1. Is the EU harmonized when comparing Spain and Sweden in the area of asylum?
2. Is further development of EU asylum policies an appropriate aim regarding the history of EU asylum cooperation?
3. Would Spain and Sweden maintain better asylum conditions in the absence of EU policies or EU cooperation?
1.2 Delimitation
To write about immigration or asylum is an enormous task as there are endless types of approaches and angels to the subjects. To be able to reveal and touch concretely on the subject in an essay that is limited per se, there needs to be several delimitations on the addressed subject in a suitable conduct.
The temporal delimitation sets the time scope to start from the mid-1980s and onwards as the close cooperation on immigration and asylum began in relation to the free movement of persons within the Union, which came about in 1985 with the signing of the Schengen Agreement.5
Case laws will be analyzed for the ability to pursue a comparative study and to answer the questions stated above. There is going to be a limited amount of case laws taken into account on specific issues related to asylum policy that is comparable in both States. The main objective is to present cases with comparable and similar factual backgrounds as possible. To
5 Noll, Negotiating Asylum. The EU Acquits: Extraterritorial Protection and Common Market of
3 be able to address the main question in this essay the cases will concern EU legislations. However, and foremost, norms that have binding force and are highly relevant to the subject will be taken into account. Not all relevant norms with binding force can be considered so the most influential and important ones, for the course of the essay, will be weighed in.6 The choice of importance and relevance is based on the regulations, in each State, which have the broadest amount of rules that concern and are used by asylum and asylum seekers. In the section of the comparison of legislation the main focus will be on certain rules and areas of the branch of asylum law. For the comparison only a few certain rules in chosen legislation will be analyzed. The choice is based on my own opinion of what is interesting in the field and relevant for the whole essay.
Geographically, the focus will primarily be set on Spain and Sweden for further examination, while the European Union policies will be considered as a whole.
The purpose of this essay is not to gain a particular perspective on asylum policies or asylum seekers, per se, as that discourse regards other fields and matters than what this essay will entail. Whether immigration and asylum is, in certain ways, good or not for the EU will not be discussed or evaluated. Neither will a profound discussion about asylum be made. The term asylum will be clarified but what asylum is as a view of analysis on history, types and the phenomenon asylum will not be offered.
1.3 Method
To be able to come to a conclusion on whether EU asylum policies are harmonized, I chose to compare Spain and Sweden with a basic normative comparison of legislative texts and a classical functionalist approach. This is because the comparative method has a key role in the harmonization processes, as the objective of harmonization is to approximate regulations in different legal systems, which is an ongoing, intensive process in the European Union. This is not only done by the direct harmonization that is made by primary and secondary EU legislation, but also by EU projects, such as e.g. Common European Asylum System (CEAS), that approximate EU Member State regulation by means like comparison of regulations to determine a common core for setting further common legislation.7
Functionalism systematically compares the function of legal systems or specific areas in the legal system, as in this case the asylum legislations. What are comparable in law are those things that fulfill the same function, answering the same legal need. As these things have equivalent functionality, functionalism does not only focus on similarities but also the differe-nces. This is seen as essential in the functionalist principle, since legal systems normally face the same problems but solves the problems differently, and usually end up with similar results, the comparison of both similarities and differences are therefore fundamental.8 For the functional comparative process, the similar or different solutions that are found, need to be extrapolated from the context of their own legal system and set in next to the other compared solutions, free from context of their own legal system, for evaluation to take place. This
6 The branch of asylum law in Sweden is basically regulated by the Swedish Aliens Act (2005:716)
along with the Administrative Procedure Act (1986:223), Aliens Ordinance (2006:97). In Spain Law 12/2009 of 30 October, Organic Law 4/2000 of 11 January and Laws Royal Decrees and Orders, which implement EU asylum policies into national law or just modify and amend the existing laws, are the fundamental regulations concerning the branch of asylum law.
7 Velluti, S., Reforming the Common European Asylum System: Legislative Developments and
Judicial Activism of the European Courts, p. 143.
4 contributes to the solutions to be seen purely in their particular legal function. Thereby a system is built, by the conclusion of the comparison. That is hence formalizing the funda-mental relations stated by the functional comparison, as the difference and similarity relation between the legal problems in compared legal systems, the functional relation between the problem and the legal institutions that respond to it, and the similar or different relation between the institutions in the compared legal systems.9
The comparison, in this essay, is done with the aim to understand the similarities and differences in the legislative texts on asylum and the implementation of these texts in Spain and Sweden. The information presented, in Chapter two, of the legislative texts on asylum and the case laws concerning these texts are therefore essential for a comparative law study. Fundamental to this information presented is that they are free from subjective values, and are of completely objective character, in order to be able to implemented with a comparative perspective. I will do my best to present the information objectively but at the same time it is impossible to elect information, which are stated in the information presentation, without any subjective value, as I am not able to present all relevant information.10
1.3.1 Material
The main materials used are doctrinal sources such as literature, articles published by legal journals, and also relevant legislation as conventions, treaties, regulations, directives and legi-slative acts. Case laws, from high or final instance courts, have also been used for the basis of a comparative analysis.
As the field of asylum policies is constantly changing, the aim to utilize contemporary sources has been of profound relevance. The doctrinal sources and articles are mostly up-to-date and can be viewed as legal doctrine or jurisprudence. I have also used some information supplying sources as material founded on governmental websites or NGO websites. The materials have been analyzed in order to achieve the aim of the essay, in a well-grounded manner. Foremost the aim has been to use primary sources and, as the doctrinal sources have been contemporary ones, the search for the referred source has not been too difficult. Where secondary sources have been used it has also been referred to the cited primary source.11
1.4 Disposition
The essay consists of five chapters and it starts with an introduction where the relevant basic facts on the subject were presented, where the aim of the essay has been stated as well as the delimitations. The method that will be used in the essay has also been reviewed in the first chapter. The second chapter deals with the legal background of the different parts of the matter. The information given is short and basic, however it presents the relevant legal background on the subject. The third chapter presents cases from each State, which is fundamental for the comparative analysis. The basic relevant information is summarized and presented in each case, and the cases are from the national court of final instance or a high national court. Chapter four contains the analysis of the subject, based on the previous chapters. Moreover, the fifth and the final chapter points out the conclusions of the essay, where the findings are stated and the questions raised in the first chapter are answered.
9 Zweigert, & Kötz, An Introduction to comparative law, p. 44. 10 Zweigert, & Kötz, An Introduction to comparative law, p. 43.
11 Secondary sources are sources that cited or referred to sources where the research processes has
been described and the result is reported, hence can be directly interpreted, can also be called primary sources.
5
2 Background
This chapter offers a basic and simple background on regulation concerning asylum. As there are a lot of norms related to asylum only the most relevant and central regulations will be presented. The presented regulations concern different scenes, and are of different types, but are all correlated with each other somehow and therefore of significance.
2.1 International regulations
The Universal Declaration of Human Rights (UDHR) is an instrument of international law that enshrines “the right to asylum.” While asylum as a right is not explicitly stated in numerous regulations by international law. Article 14 UDHR establishes that:
“Everyone has the right to seek and to enjoy in other countries asylum from persecution.”
The right to seek asylum can be seen as the right to request asylum, which is a right in relation to the country of origin and not aimed to the requested State. The equivocal term “to enjoy” can be read as a privilege ultimately granted by the State in concern and not as a right referred to individuals, hence the subjective right to enter or to reside can be debated. UDHR is of fundamental value as it was the first international human rights instrument of the post-war era. However, as it is a declaration, it is not a primary source of binding international law. Neither UDHR as a whole nor Article 14 in particular has obtained quality of international customary law.12
The single other instrument of international law that determine the existence of the right to asylum in a broad sense, in the area of EU law: Article 18 of the Charter of Fundamental Rights of the European Union, which also refers to UN:s Convention Relating to the Status of Refugees of 1951 Geneva (1951 Convention) and the UN:s Protocol Relating to the Status of Refugees of 1967 New York (1967 Protocol) These two latter stated agreements are instru-ments of international law, which deal most extensively with the subject on asylum and are essential to this essay.13
2.1.1 The 1951 Convention and the 1967 Protocol Relating to the Status of Refugees
The 1951 Convention and the 1967 Protocol are fundamental parts of international law, where rights for asylum seekers and refugees are regulated and stated. The rights conferred in the 1951 Convention is applicable by a broad determination on who is referred to as a refugee, in contrast to the protection given by other regulations on the subject, including UN:s Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of 1984 (CAT) or the European Convention for Protection of Human Rights and Fundamental Freedoms (ECHR). Who is granted the rights of the 1951 Convention is determined in Article 1 of the Convention as “refugee”, which will be defined in the following section. Articles 2— 34 in the 1951 Convention confer different rights on “refugee”, related to matters concerning wage-earning employment, education and freedom of movement. The 1951 Convention is the only instrument of international law that addresses the specific rights of a person who is in need of protection as a refugee. One of the most important establishments of the 1951 Convention is the prohibition of refoulement, which is stated in Article 33(1) of the Convention. The article prohibits the removal of a refugee to a state where he runs a certain
12 Noll, Negotiating Asylum. The EU Acquits: Extraterritorial Protection and Common Market of
Deflection, pp. 357—362.
6 risk for his life or freedom on different accounts, which are all stated in Article 33(1) of the 1951 Convention Article 33(2) vaguely formulates which group of persons are denied the benefit of non-refoulement, which also makes it clear that it is not an absolute prohibition. The prohibition of refoulement is also affirmed by other instruments of international law, such as CAT and ECHR, which indicates the importance of the prohibition.14 The 1967 Protocol, which is an amendment to the 1951 Convention, does also feature a prohibition of refoul-ement and removes all temporal limitation and almost all geographical limitation of the 1951 Convention, where what remains of the geographical limitations has lost its significance, thereby the 1967 Protocol gave the 1951 Convention universal coverage.15
The 1951 Convention is central to the asylum system of all Member States, and to the Comm-on European Asylum System. It is binding for all EU Member States and it is referred to in EU regulations, such as Article 78 of the Consolidated version of the Treaty on the Functioning of the European Union (TFEU).16 TFEU prescribes that measures on asylum adopted by the European Council must be in accordance with the 1951 Convention and the 1967 Protocol. The 1951 Convention is also referred to by the Dublin Convention17, which sets the close link between the two Conventions as Article 2 of the Dublin Convention binds all EU Member States.18
The 1951 Convention is lacking detailed procedural rules, which would be fundamental for asylum seekers in order to achieve and maintain a fair conduct by States. The 1951 Conve-ntion also lacks the option for individual remedy, as the only manner to be able to have a case heard under the Convention by the International Court of Justice, is if a State brings a the case in front of the Court. The International Court of Justice has thereby no right to bring cases up by itself.19
2.1.2 Definition
A central contribution, with a great significance, is Article 1 of the 1951 Convention, which defines asylum seekers as refugees. According to Article 1A (2) of the 1951 Convention, a person who is outside the country of his nationality, or is without nationality and is outside the country of his former residence and owns a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is eligible to be granted the status of refugee.20 Indifferent to that the clarification on who is a refugee under the 1951 Convention can be seen limited to its scope. Hence there are other instruments of international law, such as the CAT and the ECHR that grant refuge, which do not imply the same definition of refugee as the 1951 Convention. Still the termin-ology of the 1951 Convention can be considered as neutral, since it does not allow any
14 Noll, Negotiating Asylum. The EU Acquits: Extraterritorial Protection and Common Market of
Deflection, pp. 362—363.
15 UNHCR, Convention and Protocol Relating to the Status of Refugees, with an Introductory Note by
the Office of the United Nations High Commissioner for Refugees, p. 2.
16 Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the
European Union (2012/C 326/01).
17 Convention determining the State responsible for examining applications for asylum lodged in one
of the Member States of the European Communities (1997/C 254/01).
18 UNHCR, States Parties to the 1951 Convention relating to the Status of Refugees and the 1967
Protocol, Most recent ratification Nauru 28 June 2011.
19 UN, FN-förbundet UNA Sweden 07/09/2009.
20 The essay will adopt the understanding of the 1951 convention of refugees when addressing asylum
7 interpretation on whether it supports a specified or an expanded definition of the legal status provided by the term. Thereby the possibility for an interpretation on either a specified or an extended under-standing of the term provided by the Convention does not exist.21
2.2 European Union
On 1 May 1999 the Treaty of Amsterdam (Amsterdam Treaty)22 entered into force, which marked a legal transformation where the whole area of immigration and asylum was moved from the third pillar of the Union to the first pillar and therefore became a part of the then Treaty on European Community, which in 2009 became repackaged in to the TFEU by the Lisbon Treaty.23 Consequently both the Treaty on the European Union (TEU) as well as Treaty on the Functioning of the European Union were modified. The relevant regulations for EU powers on immigration and asylum are stated in Title V, Articles 77—80 TFEU after consolidation, where e.g. Article 78 TFEU states the different matters on asylum, which the Union should issue legislation on. The questions on immigration and asylum are a part of the AFSJ, which not only includes policies on immigration and asylum but also policies on internal and external border controls, common travel visa, police and judicial cooperation. The AFSJ was first established by the Amsterdam Treaty where Article 73k required a number of measures on asylum to be adopted before 1 May 2004. The achieving work was made through five-year programmes and the first one adopted was the Tampere Programme in 1999.24 At the Tampere meeting in October 1999 the European Council concluded that the rules on asylum measures should be formed as a whole, which created the Common European Asylum System (CEAS). The first phase of the CEAS, which is established in the Tampere Programme, included two parts. One short-term phase that concerned the five-year period set out by the Amsterdam Treaty, which e.g. included common standards for a fair and efficient procedure, the approximation of rules on recognition and content of the refugee status and a clear and workable determination of the State responsible for the examination of an asylum application. The second part was the long-term phase, which established that EU rules should in long term lead to a common asylum procedure and for those who are granted asylum, a uniform status that is valid throughout the Union should be created. The whole Tampere Programme expressed a strong commitment to international legal obligations on human rights as well as full dedication to obligations under the 1951 Convention as it was stated that the CEAS should be based on a complete and all-embracing application of the 1951 Convention and 1967 Protocol.25
The Tampere Programme was followed by the Haag Programme 2004 and the Stockholm Programme 2009 for further accomplishing the agenda set up by the Amsterdam Treaty. The Haag Programme set out ten priorities for the Union for further contributions to the AFSJ and on the area of asylum the established long-term plan by the Tampere Programme were to be continued. As to the short-term plan the establishment for a directive for long-term resident status for refugees as well as continuing maintenance on already established cooperation was set. The Stockholm Programme continued the contribution adopting the required measures
21 Noll, Negotiating Asylum. The EU Acquits: Extraterritorial Protection and Common Market of
Deflection, p. 15—17.
22 Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the
European Communities and certain related acts (1997/C 340/01).
23 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community (2007/C 306/01)
24 Seidlitz, Asylrätt: en introduktion, p. 29.
8 stated in the Amsterdam Treaty and sustained the establishments by the previous program-mes. Aims stated in the Stockholm Programme were the further focus and the necessity of reinforcement of Frontex, Schengen Information System and Visa Information System and broaden the continuance on setting up the CEAS.26
The programmes to strengthen the AFSJ and fulfill the required measures stated in the Amsterdam Treaty have had profound influences on shaping and filling out the content of the European asylum policies. The main manner to accomplish the goal settled in the programmes have been by regulations and directives, which are both seen as general norm-ative measures as they are binding and not addressed to specific individuals. Related to European asylum law, the most important difference between directives and regulations is that the latter ones are directly applicable according to Article 288 TFEU. Regulations are therefore applied almost in the same manner as domestic legislation, hence regulations do not have the necessity to be transported to EU Member States domestic legislation and they have legal effect independently of any national law, while directives are binding as to the result to be achieved and leave the manner of achievement to the Member States’ national authorities. Consequently directives require implementation in domestic law, which implies that the directive per se does not affect the legal position of individuals however it affects the domestic legal order within Member States.27
There are several regulations and directives relevant to this subject. In this essay the recast Asylum Procedure Directive28 is of main relevance as it establishes rules on how an asylum procedure should be examined. The Asylum Procedure Directive provides, in Article 4 of the Directive, that each Member State should appoint a determining authority for all procedures, which will be responsible for an appropriate examination of asylum application in accordance with the Directive where each application should be examined individually, objectively and impartially. Also the recast Qualification Directive29 is of importance for this essay as well as the recast Reception Standards Directive30 where the first one mentioned statutes for a uniform status for refugees or for persons eligible for subsidiary protection as well as the content of the protection granted. The Directive lays down on what grounds an asylum seeker is considered eligible for international protection, which are rules streamed from the 1951 Convention and 1967 Protocol. The Directive also includes persons with subsidiary protection who are not qualified for international protection under the definition of the 1951 Convention. The recast Reception Standard Directive, on the other hand, provides for the reception of an asylum seeker. E.g. Article 5 of the Directive sets the right to information, Article 6 states that the applicant should be provided with a document, which confirms that the asylum seekers is allowed to stay in the Member State while the application is examined. Chapter IV of the Directive sets provisions for vulnerable people. Moreover, the
26 Collett, Future EU policy development on immigration and asylum: Understanding the challenge,
pp. 2—3.
27 Battjes, European Asylum Las and International Law, pp. 35—37.
28 Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common
procedures for granting and withdrawing international protection.
29 Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on
stan-dards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted.
30 Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down
9 Dublin III Regulation31 is also of profound importance for EU asylum policies.32 It estab-lishes the mechanisms and criteria for determining the Member State responsible for examining an asylum application submitted by an asylum seeker. The Regulation puts a profound importance on family ties and the best interest of children, which is stated by points (13) and (14). Point (17) in the Preamble states that Member States should be able to derogate from the criteria stated in the regulation, this on humanitarian and compassionate grounds in order to bring together family members. The main aim for the regulation is to prevent an asylum seeker to apply for asylum several times, in more than one Member State and also to ensure that every application for asylum get their case heard and examined, therefore the regulation functions as a guarantee for the asylum seeker to not be sent away from a Member State without getting a trial. Except all the EU Member States the Dublin III Regulation also applies in Norway, Iceland, Switzerland and Liechtenstein. The regulations and directives set minimum requirements, which means that Member States can set legislatives that are more beneficial.33
The Court of Justice of the European Union (CJEU) has the task to interpret EU legislation and to judge in cases between Member States. According to Article 19 TEU the CJEU also has the task to give preliminary rulings, on the request of Member States courts, in cases where a Member State court has difficulties or uncertainties on interpreting EU legislation. The national court will then be bound by the preliminary ruling, given by the CJEU according to Article 288 TFEU as well as all courts of final instance are obliged to request a preliminary ruling if a question on interpretation of EU legislations is raised according to Article 267 TFEU. According to Article 17(1) TEU it is the task of the European Commission to control if the Member States are following EU regulations and in case of a breach by a Member State the Commission is able to bring an action before the CJEU according to Articles 114(9) and 258 TFEU. Member States are also entitled to institute infringement proceedings towards other Member States. Individuals can get their case reviewed by the General Court, which is a constituent court of the CJEU and hears actions taken against the EU institutions, only if the provision made by one of the EU institutions is directly affecting the individual according to Article 263 TFEU. Cases from the General Court can be appealed to CJEU.34
2.3 Spain
Spain is a State with a decentralized administrative structure as it is composed by seventeen autonomous communities and two autonomous cities, located on the African continent, with their own parliaments and regional governments that have wide executive and legislative powers. However, the way asylum issues are managed, should not be affected by this as the State has exclusive competence on migration and asylum, according to Article 149 of the
31 Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013
establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast).
32 The Dublin Convention entered into force 1997 and is the first legal instrument established in the
Dublin System. Regulation (EC) no. 343/2003, generally recognized as Dublin II, substituted the Convention and was later amended and reworked by Dublin III. Together they form the so called Dublin System where one regulation amend the other.
33 Seidlitz, Asylrätt: en introduktion, pp. 31—32 & 38—40.
34 According to Title V in the Rules of Procedure of the Court of Justice of 29 September 2012,
10 Spanish Constitution.35 Even though, the autonomous communities do have some impact, as they have the main responsibility for integration and socio-economic policies, which concerns e.g. accommodation for asylum seekers or guardianship for minors and more.36 The main authorities in Spain, concerning asylum, are the Ministry of Home Affairs (Ministerio del Interior, MoI), Ministry of Employment and Social Security (Ministro de
Empleo y Seguridad Social, ESS), Refugee Reception Centers (Centros de Acogida a Refugiados, CAR) and Spanish Office for Asylum and Refugees (Oficina de Asilo y Refugio,
OAR). The OAR is an administrative authority and a section of the MoI, which has the responsibility for the administrative work of the OAR. The OAR is mainly where the application for asylum can be entered when the application is made inside of Spain and not at the border, which is regulated by other authorities and procedures. The procedure for asylum starts with the first stage, consisting of the Provisional Admission Procedure, executed by the OAR, and then continues at the MoI with the second stage: the Determination Procedure. For admitted applications there are two types of procedures, an ordinary procedure and an accelerated procedure in case of necessity. Furthermore, there are different types of remedies for appeal, depending on different factors, as if the case has been expressly ended as resolved or if it has been expressed at the end of the case which way of appeal is appropriate. Also if the given time for appeal has run out or depending on what grounds the applicant want to make the appeal, as a revision of the whole case or only bring up specific part of the case or if there are new facts available for the case. The OAR executes the Revision Appeal and also the Administrative Appeal are performed by the OAR while the Judicial Appeals are either executed by the Administrative Chamber of the High National Court (appealed to the Supreme Court) or the Supreme Court of Justice of the Autonomous Communities depending on which stage the applicant received a rejection. These authorities are regulated under different legislations and the most relevant ones, concerning asylum, are to be introduced below.37
Article 13(4) of the Spanish Constitution sets the general right to seek asylum in Spain. The main act regulating the right to asylum in Spain is Law 12/2009,38 which also sets rules about subsidiary protection. Law 12/2009 has fully implemented EU legislation on asylum as, e.g. the transposition of the Asylum Procedure Directive, the Qualification Directive and chapter five of the Family Reunification Directive, which has been modified in Spanish regulations by Law 2/2014. Regulations approved by Royal Decree 203/199539 are also applicable where they do not contradict the Law 12/2009, which is then applicable in case of contradiction. There are some other Royal Decrees that are of relevance to asylum issues as Royal Decree 865/2001,40 which regulates the Recognition of the Status of Stateless, Royal Decree 1325/200341 and Law 29/199842 regulating the Administrative Courts. The Organic Law
35 Constitución Española, BOE 1978, núm. 311 p. 29313.
36 European Council, European Database on Asylum Law 01/01/2012, Spain.
37 European Council, European Database on Asylum Law 01/01/2012, Spain and Ministerio del
Inte-rior, Gobierno de España 2013, Tramitación de las solicitudes.
38 Ley 12/2009, de 30 de octubre, reguladora del derecho de asilo y de la protección subsidiaria. , 39 Real Decreto 203/1995, de 10 de febrero, por el que se aprueba el Reglamento de aplicación de la
Ley 5/1984, de 26 de marzo, reguladora del derecho de asilo y de la condición de refugiado, modificada por la Ley 9/1994, de 19 de mayo
40 Real Decreto 865/2001, de 20 de julio, por el que se aprueba el Reglamento de reconocimiento del
estatuto de apátrida
41 Real Decreto 1325/2003, de 24 de octubre, por el que se aprueba el Reglamento sobre régimen de
11 4/200043 about the rights and freedoms of foreigners in Spain and also about their social integration in Spain, is also of fundamental importance for asylum seekers in Spain. The tenth additional provision of Law 4/2000 is about special arrangements for the two autonomous cities, Ceuta and Melilla codifies "rejection at the border" in Spanish law as it states that those who attempt to cross the border of Ceuta and Melilla without authorization “will be rejected in order to prevent illegal immigration into Spain". This addition was made by the Organic Law 4/201544 for the Protection of Public Security.45
2.4 Sweden
As required by Article 4 of the Asylum Procedure Directive Sweden has appointed
Migrationsverket, the Swedish Migration Board (SMB), as the foremost determining
autho-rity for examining immigration and asylum cases, which is Sweden’s main immigration and asylum office. The SMB is an administrative authority and therefore the Administrative Procedure Act (1986:223) regulates procedures and management of cases and applications of the office. In the case of rules set by other acts or regulations, which differs form the Administrative Procedure Act, will the Act hence not be applicable. SMB is also regulated by Article 1 of Regulation (2007:996) on instructions for the Migration Board, which states that SMB is the administrative authority that deals with issues related to residence permits, reception of asylum seekers, rejections and returns. Article 2 of the Regulation states that the SMB should have predictable decision-making with high legal quality and ensure good service that meets the needs of the applicant and other of relevant actors of the case. Article 3 concerns SMB’s participation in the EU and its obligation towards the EU as the main immigration and asylum authority of a Member State.
Regarding asylum, the SMB mainly applies the Swedish Aliens Act (2005:716), which regulates, in Chapter 2, terms for persons entering, staying and working in Sweden and it also provides who has the right to international protection, asylum as well as subsidiary pro-tection, which is regulated in Chapter 4. The Administrative Procedure Act and the Aliens Act are the two main regulations that govern the asylum procedure by the SMB. There are also other regulations, like Aliens Ordinance (2006:97) about visas and travel documents, the Act (1994:137) on Reception of Asylum Seekers et al. and the Act (2008:344) on Health and Care Services, which is of relevance in asylum cases. Administrative Court Procedure Act (1971:291) regulates the trials and the court procedures of the Administrative Courts. The Migration Courts, which are assigned to try the decisions of the SMB that have been appealed, is one of the Administrative Courts along with the Migration Court of Appeal. Chapters 16 of the Aliens Act also provide regulations for both the Migration Courts and the Migration Court of Appeal. The Migration Court of Appeal is the highest and last instance in the asylum procedure. Chapter 16, Articles 11 and 12, regulate when and on what grounds an asylum procedure can be appealed to the Migration Court of Appeal, which is mainly based on the need of case of precedent or if there exist extraordinary reasons, e.g. if the Migration Court had committed a serious mistake during its trial. The judgments of the Migration Court of Appeal are binding for both the SMB and the Migration Courts and the judgments work as guidance and indications for lower instances.46
42 Ley 29/1998, de 13 de julio, reguladora de la Jurisdicción Contencioso-administrativa
43 Ley Orgánica 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en España y su
integración social.
44 Ley Orgánica 4/2015, de 30 de marzo, de protección de la seguridad ciudadana 45 Ministerio del Interior, Gobierno de España 2013, Normativa Básica Reguladora. 46 Seidlitz, Asylrätt: en introduktion, pp. 46—47 & 50—52.
12
3 Case law
In this chapter basic facts on cases concerning asylum will be presented. The aim is to present summaries on cases by each State that have similar and comparable background and that were bought before the court in the same period. The main sources used by the Courts have been pieces of EU legislation, which are of main interest for the following analysis of this essay.
3.1 Spain
The case of the Supreme Court of 14 December 2006,47 concerns an appeal brought before the Court against a decision of the High National Court that rejects a claim for refugee status based on membership of a particular social group determined by the applicants economic status. The applicant claimed to have a well-founded fear of persecution based on his membership of a specific social group. The grounds of the membership of a particular social group were based on social and economic status of the applicant. The Court had to judge the credibility of the applicant and to determine if economic status was to be identified as a particular social group. The applicant alleged that he and his family had experienced economic extortion and threats in Colombia. It was also reported that the uncle of the applicant had been kidnapped for 20 days in 1990. The reason for the claim was thereby only grounded on the economic status of the applicant, as they did not base their claim on having any particular political opinion but only on their economical wealth. The High National .Court accepted the applicant’s story as credible, but it did not grant him refugee status on the grounds that according to 1951 Convention socio-economic status does not represent a particular social group. The Supreme Court, on the other hand, granted the applicant refugee status on the ground that taking into account the socio-economic context occurring in Colombia, during the time of the sentence, it should be affirmed that a person who belongs to and has a privileged economic status in the distinguished county is identified as a person that is a member of a particular social group. The Court examined the activeties of the National Liberty Army (Ejército de Liberación Naciona, ELN), which is an active and armed group involved in various conflicts in Colombia. The Court expressed that the ELN has a communist ideology and the group advocates that the rich should give the poor so there would be equality and that the poor should be in the spots of the rich. Hence by the social and economical situation occurring in Colombia the Supreme Court established that economic status does constitute a particular social group. The Court did grant a declaration of refugee status and the conclusion was based on the Qualification Directive, Articles 9, 9.1, 10, 10.1(d) and the 1951 Convention, Article 1.
The case of the Supreme Court of 24 February 2010,48 is about an appeal by the Attorney General against a ruling of the High National Court to grant refugee status to a Moroccan army deserter. The applicant claimed to have a well-founded fear of persecution on the ground of political opinion. The applicant was an officer at the Moroccan army and as a political disagreement between the applicant and his superiors took place, he decided to desert the army. The applicant had not engaged in political activities before his asylum claim in Spain, but afterwards he appeared in both the national and the international media promoting as well as representing the Free Army Officers Moroccan Movement and also stating his discontent with the Moroccan army. After the asylum claim the applicant also worked as a spy for the Spanish Intelligence Service. The Attorney General argued that the applicant
47 Sentencia Tribunal Supremo, núm 8233/2003 de 14 de diciembre 2006. 48 Sentencia Supreme Court, núm. 429/2007 de 24 febrero 2010.
13 voluntarily kept the dispute ongoing after deserting the army, as there was no evidence of past persecution. The Court had to decide whether refugee status was to be granted on the ground of fear of persecution resulting from the applicant deserting the army or due to the spreading of political opinion that occurred in Spain. Hence the Court had to determine if the applicant was a refugee sur place.49 The Court found that the Moroccan authorities have, since the applicant deserted the army, manipulated the image of the applicant in the media, by spreading made up reasons for why he deserted the army, with the objective to defend national interests. It was also found that the Moroccan authorities used the case of the applicant to demonstrate the damaged political relation, which occurred during the time of the application, between Spain and Morocco. The Court stated that the fear of the applicant is not grounded on his activities in the army but that a well-grounded fear arose after the applicant arrived to Spain because of imputed political opinion made sur place. The Court held that what has to be taken in to account is if the persecutor has knowledge about the persecuted and his activities and if these activities would be seen as "political activities" by the persecutor. It was concluded by the Court that there was evidence of a well-reasoned fear of persecution grounded on political opinion, as it was considered a valid likelihood of the applicant being persecuted in Morocco. As it is based on activities carried out in Spain the applicant was determined as a refugee sur place. The decision of the Court was based on 1951 Convention, Articles 1(a) and 33, and the Qualification Directive, Articles 5, 10, 10.1(e).
In the recent Zaizoune case (C-38/14, of the 3 April 2015), the Supreme Court of Justice of the Autonomous Communities of the Basque Country made a preliminary reference to the CJEU, concerning a Moroccan national, Mr. Zaizoune, who could not identify himself in an arrest by the Spanish law enforcement authorities. The procedure led to a decision, by the Representation of the Spanish State in Gipuzkoa, ordering his removal from the territory of Spain and banning him for entry for five years on the ground that he was staying in Spain illegally and on the count of his criminal record in Spain. The decision was based on Article 53(1)(a) Organic Law 4/2000 on Rights and Freedoms of Aliens in Spain and Their Social Integration. Mr. Zaizoune bought an action, before the Court for Contentious Administrative Proceedings, which annulled the decision. Then the judgment was appealed by the Representation of the Spanish State in Gipuzkoa to the Supreme Court of Justice of the Autonomous Communities of the Basque Country. The Court held that the interpretation of the concerning national provisions by the Spanish court of last instance were that the main penalty given to illegally staying aliens is a fine, if there are no further aggravating factors, which would justify the removal of a third-country national from the national territory thereby replacing the fine. Hence the Supreme Court decided to submit the following reference to the CJEU:
“In the light of the principles of sincere cooperation and the effectiveness of directives, must Articles 4(2), 4(3) and 6(1) of Directive 2008/115 be interpreted as meaning that they preclude legislation such as the national legislation at issue in the main proceedings and the case-law which interprets it, pursuant to which the illegal stay of a foreign national [on the national territory] may be punishable just by a financial penalty, which, moreover, may not be imposed concurrently with the penalty of removal?”50
The CJEU considered the submitted question had to be reformulated in order for the CJEU to provide the national court with all the elements of interpretation of EU law that may be of
49 According to Article 5 of the Qualification Directive sur place is referred to the engaged activeties
by the applicant since he or she left the country of origin.
14 assistance in the concerning case. Thereby the CJEU had to answer whether Directive 2008/11551, specially Articles 6(1) and 8(1), as well as Article 4(2) and (3), must be interpreted as precluding legislation of a Member State, in event of third-country nationals illegally staying in the territory of the Member State, depending on the circumstances, for either a fine or a removal. The CJEU held that the objective of the Directive, which is concerned, is the establishment of an effective removal and repatriation policy, grounded in points 2 and 4 of the preamble in the Directive, which also states the duty of sincere cooperation on the Member State. The CJEU stated that according to Article 6(1) of the Directive, if it has been established that the stay is illegal, the Member State is obliged to issue a return unless any of the exceptions provided by Article 6(2) to (5) is applicable, which does not occur in the concerning case. The CJEU also held that Member States should not apply rules that have the possibility to jeopardize the achievements of the objectives held by a directive and thereby deprive it of its effectiveness. Hence the CJEU answered the referred question as follows:
“Directive 2008/115, in particular Articles 6(1) and Article 8(1), read in conjunction with Article 4(2) and (3), must be interpreted as precluding legislation of a Member State such as that at issue in the main proceedings, which provides, in the event of third-country nationals illegally staying in the territory of that Member State, depending on the circumstances, for either a fine or removal, since the two measures are mutually exclusive.”52
The Spanish national rules are therefore not compatible, according to this judgment, with the objectives and rules, concerning this case, in the Directive 2008/115.
3.2 Sweden
The case of the Migration Court of Appeal on 22 December 2009, UM 1664-09, concerns an Iraqi female who applied for asylum on the grounds of persecution as she had experienced threats because of her position as a recognized intellectual and academic. The applicant and her husband taught at the Bagdad University and in 2007 they received threatening letters and in April the same year they were shot at and they decided to quit their jobs. The Migration Court granted the applicant refugee status but the SMB appealed to the Migration Court of Appeal on the ground that academics do not represent a particular social group. Hence the Court had to determine if academics should be recognized as a particular social group. It held that academics do not belong to a homogeneous group in the sense of sharing common and unchangeable characteristics and backgrounds. The Court also stated that academics should not be identified as having common qualities or convictions so fundamental for their values and identities that they cannot be forced to give them up. Hence the Court concluded that academics, as a group of professionals, should not be included in the scope of the refugee definition on the basis of being a particular social group. Thereby the applicant was not granted asylum. The conclusion of the Court was based on the Qualification Directive, Articles 2, 4, 10, 10.1(d) and 15, and they turned to UNHCR Handbook, Paragraph 177, for clarification on who is a person of a particular social group. On the same date the Migration Court of Appeal delivered two other judgments concerning Iraqi applicants for asylum on the grounds of persecution based on particular social group: one concerning an Iraqi doctor, UM
51 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on
common standards and procedures in Member States for returning illegally staying third-country nationals.
15 240-09, and another one on an Iraqi musician/artist, UM 7669-09. The same conclusion was reached in all three cases, that none of them could be considered a member of a particular social group.53
The case of the Migration Court of Appeal on 16 September 2011, UM 4801-10,54 concerns an Iranian applicant who sought asylum on the grounds of persecution based on political opinion. The applicant had not been politically active in Iran but the Iranian authorities confiscated his satellite as well as his computer, which contained webpages related to converting from Islam. When the applicant arrived to Sweden he engaged in demonstrations, made interviews on the Internet and in TV where he expressed himself against the Iranian authorities. The applicant was also active in the Iranian Communist party in Sweden with his current girlfriend. The girlfriend’s former husband was also an activist in the same party but is currently famous for working as a spy for the Iranian authorities, which is recognized and under the investigation by the Swedish Security Service. The applicant also stated that both his parents and his girlfriend’s parents have been interrogated in Iran where the authorities presented, in detail, the activities they have been participating in. The Court had to determine if the applicant was in need of international protection as a result of his activities in Sweden, hence if he was to be granted asylum or subsidiary protection based on political activities occurring sur place. The Court held that there is no doubt on the political activities engaged by the applicant but what should be determined when it comes to an application concerning political activities sur place is if the activities per se are of interest for the persecutor. The Court found, based on the country of origin information, that it is not likely that the Iranian authorities would have a further interest in the applicant regarding the scale and nature of these activities. Hence the Court held that, based on the political activities performed in Sweden by the applicant, a sufficient risk for him to be persecuted by the Iranian authority does not occur, and therefore there is no further reason for the Court to examine whether the activities performed by the applicant are or might become known to the Iranian authorities. The Court did not grant asylum and the decision was based on several articles of the Qualification Directive and several paragraphs of the UNHCR Handbook.
The case of the CJEU, Migration Court v Kastratis and others (C-620/10, of 3 May 2012), concerns Mrs. Kastrati and her two minor children (which will all henceforth be referred as Mrs. Kastrati) applied for asylum in Sweden while obtaining a French visa. Mrs. Kastrati had applied for a residence permit in the Swedish Embassy in Skopje, former Yugoslavian Republic of Macedonia. The application was made on the grounds that her husband, Mr. Kastrati, which she met in 2004 and is not the father of the minors, lives in Sweden since 1992. The application was dismissed in the SMB and Mrs. Kastrati appealed to the Migration Court but withdrew her appeal. Mrs. Kastrati entered Sweden, in Marsh 2009, on a valid visa granted by the French authorities. In April 2009 Mrs. Kastrati applied for asylum in Sweden and in June 2009 the SMB requested that the French authorities, in accordance with Article 9.2 of the Dublin II Regulation,55 take responsibility of the family under Article 16.1 according to the Dublin II Regulation. Meanwhile, in June 2009, Mrs. Kastrati applied for a second permit of residence and in the same month they withdrew the asylum application while the French authorities, which did not know anything about the withdrawal of the
53 MIG 2009:36.
54 Swedish Migration Court of Appeal UM 4801-10, issued 2011-09-16.
55 Regulation (EC) No 343/2003 of the European Parliament and of the Council of 18 February 2003
establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national.
16 asylum application, accepted to take charge of the family in July 2009. The SMB did once again reject Mrs. Kastrati a residence permit and also they rejected the asylum application on the ground of the transfer to France. Further litigation was made at the national level until the Migration Court of Appeal submitted the following questions to the CJEU:
“(1) In the light of, inter alia, the stipulations of Article 5(2) of Regulation No 343/2003 and/or the absence of provisions in the regulation on the cessation of a Member State’s responsibility to examine an asylum application other than those contained in the second subparagraph of Article 4(5) and Article 16(3) and (4), is Regulation no. 343/2003 to be interpreted as meaning that the withdrawal of an asylum application does not affect the possibility of applying the regulation?
(2) Is the stage in the process at which the asylum application is withdrawn relevant in answering the question set out above?”56
Hence the main question for the CJEU to answer was whether a withdrawal from an asylum application with the terms of Article 2(c) of the Diblin II Regulation, which occurs before the Member State responsible for examining that application has agreed to take charge of the applicant, has the effect that that regulation can no longer be applicable. The CJEU held that if an asylum application is withdrawn the principal objective of the Dublin II Regulation, i.e. the identification of the Member State responsible for examining an asylum application in order to guarantee effective access to a judgment on the refugee status of an applicant, can no longer be attained. The CJEU also stated that the EU legislature has not ruled on cases that concern similar issues as in the case where an asylum applicant has withdrawn his application without also having entered applications in at least on other Member State. Hence the CJEU answered that the concerning Regulation “must be interpreted as meaning that the withdrawal of an application for asylum within the terms of Article 2(c) of that regulation, which occurs before the Member State responsible for examining that application has agreed to take charge of the applicant, has the effect that that regulation can no longer be applicable.” Thereby the Swedish Migration Court of Appeal was obliged to continue the examination of the application and the CJEU also added that the information related to this event should be entered in the file of the applicant. There was also an opinion to this case by Advocate General Trstenjak, which argued that the Regulation not only brings the responsibility to examine a case by a Member State but also embeds the responsibility for returning the former asylum seeker to the specific responsible Member State. Thereby Advocate General Trstenjak reasoned that the responsibility to finish the case lies within the French jurisdiction.57
4 Analysis
This section referrers to give an analysis based around the information given previously in the essay. As the background given was limited in the amount the analysis will consequently be limited as well. The analysis carried out in this section is discussed and states the answers for the questions asked in the first section of this essay.
4.1 European Union
The EU has gone through some fundamental changes and developments during time, both in policies related to asylum as well as the policies on the structure and function of the EU,
56 C-620/10, para 35.
57 C‑620/10, Migration Court v Kastratis and others, Opinion by Advocate General Trstenjak, V., 12
