The Common European Asylum System (CEAS) has strived to provide a uniform set of guidelines aimed at harmonizing the implementation of asylum procedures across the European Union. The following project will trace the instruments that make up the CEAS across different levels of governance, and track if and how differences emerge in the way different countries absorb European Directives, Regulations, and other instruments, ultimately yielding different procedures of bureaucratic implementation. Essentially, the aim of this investigation is to understand how bureaucrats implement the Common European Asylum System in different countries, and how can any differences in implementation be explained. Through a case study comparison, an understanding of how country-specific contexts affect the establishment of a comprehensive and harmonized asylum policy in the European Union will emerge. In observing these differences, much of the focus will be placed on the discretionary space available to bureaucrats involved in making asylum decisions. As this work will argue extensively in this section, this is the space where decisions are made and where harmonization takes place.
Examining the larger context of asylum bureaucracy is largely important for grounding this research into a real-world context. While the intent of this research is to place empirical emphasis on the Directives and Regulations of the CEAS, these are only a small cog in the entire machinery surrounding asylum. The Union’s interest in deterring the flow of those seeking protections has created a very particular way of reaching European shores – one defined by the image of the overcrowded boats crossing the Mediterranean. This particularity of travel is presented differently in different countries, and the way discussions evolve around this are just one example of what could influence different countries to adopt different implementation procedures of the same policies.
This potential difference in implementation can be attributed, then, to a certain type of public and political discourse, creating unique contexts within which the policy has been developed. The images of asylum seekers cramming into boats and risking their lives to reach Europe have created concepts such as ‘refugee crisis,’ ’migration crisis,’ or ‘Mediterranean crisis.’ Usage of these terms has permeated discourse at a European level, even though 75% of all applicants on the continent are received by only 5 of the EU 28 countries. It is, in fact, the Union’s policies themselves that have given asylum seekers no choice but to seek hazardous and illegal ways of protecting their livelihoods, and have therefore given credibility to the image of the invading hordes of potential refugees. The fact that any sort of access to refuge is purposely dealt with in an ambiguous manner by EU law, coupled with specific policies in respect to Schengen visas and carrier sanctions, among many others, have left those needing asylum with very little choice in seeking other means of adequate protection. The ambiguity of EU law has thus left countries with a lot of flexibility in choosing how to adapt the CEAS to their own context . Understanding, then, at what point in the policy process differences in implementation emerge or at which level are divergences from the original policy goals most likely to take place, is the surest way to also understand what type of policy intervention is needed for harmonization to be achieved. It is important to note that this work will not attempt to argue for or against the merits of harmonized policies in the EU. Whether harmonizing policies, or eliminating differences in policy implementation across different jurisdictions, is desirable will be something this work will not tackle. Rather, it is understood here that regardless of the normative arguments for or against harmonization, the EU has pursued this strategy in building the continent’s approach to asylum seekers.
The previous paragraph, which serves as a practical explanation for the importance of this topic of research, exemplifies an aspect of the policy process that leads to a certain level of ambiguity and the complexity within the CEAS. The roots of this ambiguity can nevertheless be traced to the features of the multilevel system of governance inherent to the European system of asylum. This PhD project will dive deep into these features, and their manifestations, but it is important to underline that scholarly work regarding asylum reflects the multilevel structure of the CEAS. Many studies have been done on analyzing (or criticizing) each individual regulation and directive encompassed by the CEAS (see Hurwitz, 1999; Comte, 2010; Costello, 2005; Costello & Mouzourakis, 2017; Heijer, Rijpma, & Spijkerboer, 2016; Jakulevičienė, 2010; Battjes, 2014), as well as many others not directly included in the system, yet relevant to asylum policy, such as the forced return directive or the 2015 relocation and redistribution scheme (Acosta Arcarazo, 2011; Carrera, 2016; Grigonis, 2016). Other EU mechanisms have also been scrutinized by scholarly work, most notably the EU law and the work of the Court of Justice of the European Union (Noll, 2001; Costello & Mouzourakis, 2016, Peers, Moreno-Lax, Garlick, & Guild, 2015; Hailbronner & Thym, 2016; Battjes, 2006; Costello, 2015; Drywood, 2014), but also policy documents released by the European Commission, Council, or Parliament (Stevens, 2017; Trauner, 2016). Many of these works take on a critical tone, but few make any claims regarding the level of harmonization achieved. Indeed, this may be largely due to the fact that there is not any image of what a harmonized system would actually look like.
As my work argues, even the assertion of the European Commission that harmonization has failed is built on incorrect assumptions. Nevertheless, the literature listed above has tried to stitch together stages of the entire multilevel process in order to better understand why, for example, the national and institutional levels interact in the way they do (Dörrenbächer, 2017), or why the EU interacts in specific ways with the national level in this policy area (Genschel & Jachtenfuchs, 2017). Givens and Luedtke (2004) make an argument regarding asylum policy harmonization, and the effects of issue salience and intergovernmental bargaining, but one that explains the EU level and the actors involved in the bargaining. Below this, most importantly at the street-level, harmonization is not considered. Nick Gill, on the other hand, takes the opposite approach, by looking at specific spatial and temporal aspects affecting how asylum-sector decision makers conduct their jobs (2009), but nothing above.
As much as these scholars have elevated our understanding of certain aspects of this process, an understanding of the way multilevel governance affects harmonization of asylum policies still lacks. This is largely because studies conducted thus far have isolated and looked at specific instances in the policy process, not at its entirety. The value of this present work will lie in the mapping of the entire process of establishing the CEAS, and take into account the country specific contexts in which its implementation takes place across Europe. For this reason, I will argue, harmonization can only be measured at the street-level, because harmonization can only happen in practice – a policy meant to secure fundamental rights is successful only when those rights are delivered, or when non-deliverance is justified through the use of proper bureaucratic procedures. Differences in policy implementation, then, can best be observed in the discretionary space available to bureaucrats making decisions. It could be argued, at this point, that if the onus of harmonization is on the bureaucrats implementing policies, then looking at the entire policy process might represent a misuse of time and resources, not to mention adding an unnecessary complexity to the study. This, however, would be the same approach used until now in literature: isolating and studying only one part of the policy process. For this reason, my work will exemplify why it is past time that a picture of the entire policy process is built, rather than continuing to treat each part as if it were in a vacuum, removed from the stages that precede or follow it.