Ann Campbell is B.C.L., L.L.M., B.L., Project Administrator at the Irish Refugee Council (IRC). The IRC is Ireland’s only national non-governmental organisation which specialises in working with and for refugees in Ireland.
‘EDAL is unique in that it has, for the first time, brought together in one place and in an accessible manner the principal case law across EU Member States in relation to the interpretation of EU asylum law and, by implication, international law. It has collated a wealth of judgments on issues common to EU countries in the context of asylum law, practice and policy. It is an easily accessible and freely available resource for a variety of users and uses.’
The European Database of Asylum Law (EDAL) is an accessible, open access, online database of case law from EU Member States relevant to the interpretation of European asylum law. It is coordinated and hosted by the Irish Refugee Council (IRC) in partnership with the European Council on Refugees and Exiles (ECRE) and the Hungarian Helsinki Committee (HHC). It is funded by the European Commission’s European Refugee Fund.
EDAL’s primary purpose is to provide summaries of relevant case law in English and the national language of the Member State in which the decision was made. EDAL is searchable in English and the original language of the decision. Cases are searchable by multiple search fields, e.g. case name, date, country of applicant, country of asylum, provisions of EU law, ‘free-text search’ and by selecting keywords. There is also an extensive browse function available so that users can browse decisions according to country and legal provision etc. A User Guide to the Database is available in 9 EU languages at http://www.asylumlawdatabase.eu/en/content/about-edal-european-database-asylum-law.
The primary target audience for this data-base is legal practitioners, the judiciary, decision-makers at all levels, policy makers and academics. It is of course also useful to a variety of other actors, including, for example, NGOs, refugee councils and other policy advocates. By improving the quality and consistency of decision-making, asylum seekers, refugees and host countries also benefit from the resource.
The EDAL project aims to foster deeper cooperation amongst decision-makers and practitioners in Member States by facilitating and promoting an exchange of information and the development of best practice on the implementation of EU law. Accordingly EDAL endeavours to be complementary to and integral to the development and furtherance of the Common European Asylum System.
The Common European Asylum System
Migration is one of the key challenges facing the world in the 21st century. Refugees, asylum seekers and those in need of international protection form a core part of this challenge and finding appropriate, human-rights compliant methods of managing this phenomenon is, and must be, a central political and legal concern. Europe has a long history of sheltering those seeking refuge – not least during World War II – and the last couple of years have been no different. According to the European Commission’s 3rd Annual Report on Immigration and Asylum, in 2011 there was an increase of 15% in new asylum applications in the European Union (EU), amounting to 277,400 applications.
The Common European Asylum System (CEAS) is based on the full and inclusive application of the 1951 Geneva Convention relating to the Status of Refugees and the New York Protocol of 1967. It seeks to address needs which have arisen from, among other things, the processes flowing from the Schengen Agreement, the relaxing of borders within the EU, the resultant need for agreement on the regulation of the EU’s external borders and the gradual expansion of EU powers to create an ‘Area of freedom, security and justice’ grounded in the Tampere Program (1999 – 2004).
In addition to specialised legislation facilitating the development and functioning of the various EU structures which support the CEAS, the legislative framework of the CEAS lies in the following Regulations and Directives:
- The Qualification Directive;
- The Asylum Procedures Directive;
- The Receptions Conditions Directive; and
- The Dublin II Regulation.
These instruments apply to the entire EU with the exception of the Republic of Ireland, the United Kingdom and Denmark whose participation is optional by way of opt-in provisions.
Currently, the European Commission has presented proposals to recast the Asylum Procedures Directive, the Reception Conditions Directive and the Dublin II Regulation. These are expected to be agreed and adopted by the end of 2012. A recast version of the Qualification Directive was adopted by the European Parliament and the Council of Europe on 24 November 2011 and must be transposed by 21 December 2013.
In addition to work on the recast legislation, there have also been a number of cases from the European Court of Human Rights (ECtHR) and Court of Justice of the European Union (CJEU) that have had significant effects on the CEAS, such as the ECtHR case of M.S.S in January 2011 and the CJEU cases of M.E. and N.S. in December 2011.
In 2010, the Stockholm Programme (2010 – 2014) called for the CEAS to be finalised by the end of 2012; in addition it urged the Commission to consider whether it was necessary to propose new legislative instruments in the area and raised the possibility of responsibility sharing mechanisms between EU Member States. It invited the Commission to finalise its study on the feasibility and legal and practical implications of establishing joint or external processing of asylum applications. The Stockholm Programme also led to the establishment of the European Asylum Support Office which published its first Annual Report in June 2012.
Gaps in the system that EDAL aims to address
Despite the advances achieved by the CEAS to date, wide disparities remain in the application of the CEAS legislation at the national level. Interpretations of the Directives and Regulation by policy makers, the judiciary and front-line staff can vary greatly with little, if any, conscious consistency across jurisdictions. Discrepancies and contradictory interpretations of the standards contained in the Directives and Regulation are manifold. This significantly undermines the ideal of comparable and appropriate quality in the recognition and treatment of refugees, the provision of subsidiary forms of international protection and the rights and privileges gained by beneficiaries of these protections across the EU. It undermines the CEAS aim of limiting internal movement of applicants within the EU based solely on differences in legal standards.
While access to the legislation itself is not an issue, there is often a lack of dialogue and information exchange between legal jurisdictions on the substance of the CEAS. Information and legal judgments from other jurisdictions are not always accessible or consulted by those whose work would benefit from this. Indeed, in certain Member States access to decisions from within the jurisdiction is sometimes difficult. For example, EDAL has made available cases from Hungary where it is necessary to interview decision-makers in person to identify relevant case law as well as in Finland where asylum cases are not made available to the public or on internal government databases.
In other jurisdictions the only method of identifying case law with jurisprudential value has been by having access to client case files. As the governing legal framework of the CEAS is finalised and improved it becomes imperative that harmonised implementation is facilitated as much as possible to ensure the ultimate efficacy of the CEAS as it applies to individual asylum seekers on the ground.
The database was launched by the President of Ireland, Michael D. Higgins, in February 2012 offering case law summaries from 11 countries:
- Czech Republic
Cases are selected by experts in the field from each jurisdiction.
Due to the breadth of the CEAS, experts have been carefully briefed on the criteria which should be applied in selecting cases for inclusion in EDAL so as to ensure a degree of consistency concerning the legal provisions and issues examined in selected cases and in the format of the case summaries. This enables certain concepts and issues to be effectively examined in detail and facilitates a comparative analysis of the interpretation and application of laws across Member States.
Cases available on the database are those where a significant point of law is discussed and the reasoning of the decision-maker is evident and instructive. This can include, for example, precedent setting cases or those that contributed to policy changes at the national level. In addition, cases are selected if they are considered significant and therefore should be shared with decision-makers and practitioners in other Member States, regardless of the outcome.
Care is taken to ensure that the range of cases available is objective and weighted neither towards a pro- nor anti-applicant bias so as to ensure that EDAL presents a balanced view of the state of jurisprudence at the national level. EDAL is useful to identify cases that highlight protection gaps in Member States or demonstrate instances where Member States have maintained higher standards than are required by EU asylum acquis but that correspond with international law. The summaries are drafted in country by the national expert along with any comments or observations of relevance.
In addition to providing case summaries, EDAL also provides a link to the full text of the decision, where available, and has a resource section providing easy access to a range of documentation relevant to asylum law. EDAL is conscious that EU law is not the only source of asylum and refugee law in Member States; most obviously every Member State is a signatory to the 1951 Geneva Convention on the Status of Refugees. The resource section therefore includes various legislative texts, including the 1951 Convention and documentation by the UNHCR as well as documents and thematic articles produced by NGOs with expertise in the area of asylum and refugee law.
Country Overviews have also been drafted by national experts from each Member State. These provide details on each country’s legal framework, outlining how the justice and asylum system operates and explaining the standing and relationship between different courts and tribunals.
EDAL is now entering its second phase during which the user interface will be available in French and German as well as English. In addition to cases from the above listed countries,case law will be available from a further six EU countries, bringing the total to 17:
As part of the second phase of the EDAL project, the content of the database will be expanded from its current focus which is primarily on the Qualification and Asylum Procedures Directives to cover all substantive legislation of the CEAS. In addition, case law from decisions of the CJEU and the ECtHR will be added to the site to facilitate access to these crucial resources and encourage increased adherence to European interpretations by national courts and tribunals. It is further planned to establish an on-line analytical journal and blog and to convene international conferences on international asylum law. These will encourage dialogue on issues covered by the CEAS and the evolution of concepts through analysis and the exchange of views across different legal systems and legal cultures throughout Europe.
By the end of Phase II in early 2014, it is expected that the expanded EDAL will be a comprehensive and user-friendly resource on all the main aspects of European asylum law with summaries of over 1,000 decisions of interest from 17 Member States, the CJEU and the ECHR.
EDAL is careful to complement rather than duplicate the work of a number of international on-line resources on refugee law as well as that of the new European Asylum Support Office as it tries to build quality and consistency across the EU. EDAL is unique in that it has, for the first time, brought together in one place and in an accessible manner the principal case law across EU Member States in relation to the interpretation of EU asylum law and, by implication, international law. It has collated a wealth of judgments on issues common to EU countries in the context of asylum law, practice and policy. It is an easily accessible and freely available resource for a variety of users and uses.
There is in fact no comparable database which addresses the elements of the CEAS from not simply a pro- or anti-asylum seeker perspective and which has itself a philosophy, worked through into practice, of promoting the common goal of ensuring that international protection is available to the highest standards in countries across the EU. It presents therefore the opportunity to learn from, contrast and compare issues that are highly relevant to the development of good asylum law, policy and practice within the EU.
 M.S.S v Belgium and Greece, Application No. 30696/09.
 C-411/10 N.S. v Secretary of State for the Home Department (United Kingdom) and C-493/10 M.E. and Others v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform (Ireland).