The Europeanisation of Asylum law: A rights-enhancing process?

Over the past thirty years, the Member States of the European Union (EU) have gradually built a set of institutions to coordinate and, increasingly, regulate their migration and asylum policies. The Common European Asylum System (CEAS) aims at creating a level-playing field among national asylum regimes to guarantee equal protection throughout the EU. The current wave of forced migration towards the EU, however, has put the freshly reformed CEAS to the test. Is the human right to asylum effectively protected under the EU’s asylum governance framework? What is the impact of the European integration of refugee law on asylum protection in the EU Member States? The prevalant discourse in academia has been to consider European integration in asylum policy as dominated by national budgetary and security interests, rather than as rights-enhancing. The resulting governance framework has thus been the focus of much criticism from non-governmental organisations (NGOs) and international organisation for its lack of coherence with the spirit and often the letter of international refugee law. Sociological institutionalism (Huysmans, 2000) considers that, at the national level, a combination of concerns for security, the welfare State, and cultural integrity led to the ‘securitization’ of asylum policy. Rational institutionalism (Guiraudon, 2001) argues that law and order officials built and exploited political venues favourable to furthering their agenda. Based on different premisses, most researchers reach the conclusion that integration has led to the creation of a regime that secures the primacy of State interests over the human rights of asylum-seekers and refugees. Between 2009 and 2013, the EU adopted a new set of rules aimed at addressing a number of failings in existing law, and codifying a significant body of jurisprudence. These reforms were carried out under new procedural conditions since the ‘ordinary procedure’ involving qualified majority voting in the Council of the European Union, and equal legislative competencies with the European Parliament, is now in force. The reformed provisions were meant to be transposed into domestic law by 2015. In the context of the biggest refugee crisis since World War II, domestic reforms were carried out in an explosive political climate. My research confronts the existing literature with new data on the implementation process of the last EU asylum package. In this paper, I will assess the extent to which regional integration has allowed for better coherence among the national asylum regulatory systems. Specifically, I will compare how EU Member States have implemented the new provisions of EU law (Directive 2013/33/EU) concerning access to healthcare during administrative detention, with a particular focus on persons with special needs. The comparison of domestic reform processes should allow to account for varieties of implementation and thus for the resulting variation of compliance with international asylum law.