A Tale of Two Decades: War Refugees and Asylum Policy in the European Union

52 Pages Posted: 14 Nov 2009 Last revised: 26 Oct 2021

Date Written: November 13, 2009


The past twenty years have seen profound developments in the institutional competence of the European Union to address issues of migration and refugee status. The growth of the internal market, the expansion of passport-free travel, and the continuing arrival of individuals fleeing war or persecution led to the realization that a joint European approach to asylum seekers was necessary. Negotiations among the Member States have resulted in a Common European Asylum System. These European developments are largely unknown among refugee scholars, decision makers, and advocates in the United States. This article outlines the Common European Asylum System in order to broaden the policy debates concerning immigration and asylum in the United States. An examination of the five components of the Common European Asylum System - laws defining those who qualify for legal status, minimum standards for asylum procedures, basic conditions for accommodating asylum seekers awaiting decisions on their applications, temporary protection, and apportioning state responsibility for determining asylum claims - identifies both similarities and differences from the legal protection afforded asylum seekers in the United States.

One of the major innovations of the common EU policy is the creation of an enforceable right of asylum for those who do not qualify as refugees but who can show substantial grounds for believing that they will suffer serious harm if returned to their country of origin. Known as subsidiary protection, EU law now requires the Member States to provide renewable residence permits to civilians at risk due to indiscriminate violence from armed conflict. In contrast to the United States, where individuals fleeing countries engulfed in armed conflict might, at best, be eligible to apply for the discretionary Temporary Protected Status, in the EU war refugees now have a judicially enforceable right to subsidiary protection. Moreover, in its first interpretation of this right, the European Court of Justice ruled that those seeking subsidiary protection need not produce evidence in every case that they have been singled out or targeted for harm. In overturning the Dutch government’s denial of a residence permit to an Iraqi citizen who had fled the violence in his Baghdad neighborhood, the ECJ affirmed the new avenue of protection for civilians fleeing situations of indiscriminate violence.

The arguments of the litigants before the ECJ resonate with arguments familiar to advocates and policy makers in the United States. Although refugees from war zones currently fall outside the scope of the U.S. refugee laws, the broad interpretation of subsidiary protection adopted by the ECJ gives new hope to migrants forced from their homes by the scourge of war.

Keywords: war refugees, Common European Asylum System, Elgafaji v. Staatssecretaris van Justitie, comparative law, U.S. immigration law, U.S. asylum law, international refugee law, international human rights, European Union law

Suggested Citation

Fullerton, Maryellen, A Tale of Two Decades: War Refugees and Asylum Policy in the European Union (November 13, 2009). Global Studies Law Review, Vol. 10, No. 1, Brooklyn Law School, Legal Studies Paper No. 175, Available at SSRN: https://ssrn.com/abstract=1505465

Maryellen Fullerton (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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