EU Adviser Chastises States for Passing Asylum Buck

(CN) – A European Court of Justice adviser said Thursday that no EU regulation on asylum, visas or undocumented immigration is meant to address the influx of over 1 million refugees in 2015 alone, and urged member states to help each other to process asylum applications – regardless of where the refugees crossed to enter the EU.

Advocate General Eleanor Sharpston’s 35-page advisory opinion for the EU high court stems from two challenges brought by refugees in which member states had denied asylum applications because the refugees entered the EU in another member state. In both cases, the immigration authorities said the asylum-seekers had to apply at their point of EU entry – Croatia.

Both asylum-seekers argued they entered the EU legally – one because Croatia allowed him to cross its border and the second because Croatia allowed them in on humanitarian grounds. For their parts, the member states involved said both crossings should be deemed “irregular” under EU law, which puts the burden on processing the asylum applications on Croatia as the point of entry.

But Sharpston said no EU law was written to foresee the largest mass movement of people across Europe since World War II, and the exceptional nature of such an influx requires a fluid interpretation of applicable laws.

To that end, Sharpston said member states allowing refugees to cross into EU territory does not amount to issuing a visa, nor do the words “irregular crossing” as found in EU law apply to a situation as exceptional as the one Europe has been dealing with for more than two years.

“While the entry of [the refugees] into EU territory cannot be said to be ‘regular,’ it can neither be classified as irregular within the meaning of the regulation,” Sharpston wrote. “This is particularly so given that the transit member states not only tolerated the mass border crossings, they actively facilitated both entry into and transit across their territories. The regulation was simply not designed to cover such exceptional circumstances.”

Furthermore, Sharpston said member states had a legal right and obligation to allow the refugees in on humanitarian grounds – though she rejected that doing so constituted wholesale visa waivers.

Given those findings, Sharpston said it is unreasonable to expect Croatia to be able to handle processing the refugees who simply entered EU territory there.

“If border states such as Croatia are deemed to be responsible for accepting and processing exceptionally high numbers of asylum-seekers, there is a real risk they will simply be unable to cope with the situation,” she said, adding that expecting them to do so puts them in a position where they will be unable to comply with their obligations under EU and international law.

The only solution, Sharpston said, is to have asylum applications examined in the member state where they are lodged – no matter where the refugee entered the EU.

Sharpston’s opinion is not binding on the Luxembourg-based high court, which has begun its own deliberations in the cases.

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