The Recast Asylum Procedures Directive 2013/32/EU: Caught between the Stereotypes of the Abusive Asylum Seeker and the Vulnerable Refugee

Forthcoming in V. Chetail, P. De Bruycker & F. Maiani (eds) Reforming the Common European Asylum System: The New European Refugee Law (Martinus Nijhoff, 2015)

Oxford Legal Studies Research Paper No. 33/2015

45 Pages Posted: 27 May 2015

See all articles by Cathryn Costello

Cathryn Costello

University of Oxford - Refugee Studies Centre; University of Oxford - Faculty of Law; University of Oxford - Department of International Development

Emily Hancox

University of Edinburgh, School of Law

Date Written: February 05, 2015

Abstract

This piece provides a detailed analysis of the Recast Asylum Procedures Directive (Recast APD). Although we are now two decades into harmonization of asylum procedures at the European Union (EU) level, we begin in Part 2 by revisiting the rationale for this process. We contend that the most persuasive rationale for procedural harmonization, in an EU legally committed to refugee protection, is to ensure fair procedures, and to prevent a race to the bottom in procedural standards. Efficiency must serve fairness, not vice versa. The original Asylum Procedures Directive (APD) failed to meet this aim by a long margin. The Recast APD is the product of the new, post-Lisbon legislative environment, so as Part 3 suggests, it comes with high hopes for improvement, particularly given the Parliament’s relatively new role as co-legislator on asylum matters. Our analysis reveals that the Recast APD contains many improvements on its predecessor, but overall our assessment is mixed, particularly if we assess it in terms of the objective of setting clear basic minimum standards of fairness. We attempt to explain this ambivalent outcome by suggesting that the Directive reflects two competing stereotypical views of the asylum seeker. On the one hand, there is a strong notion that asylum procedures must work to weed out ‘abusive’ claims. In contrast, there is also a strong acknowledgement that some asylum seekers are particularly vulnerable or have special needs (as will be seen, different terminologies are used in different contexts). As we argue, these stereotypes create complexity, and crowd out the basic notion of refugee status determination (RSD) as a process for recognising refugees, on the assumption that many (although of course not all) of those who apply will be so recognised.

Keywords: EU Asylum procedures, human rights, procedural fairness

Suggested Citation

Costello, Cathryn and Hancox, Emily, The Recast Asylum Procedures Directive 2013/32/EU: Caught between the Stereotypes of the Abusive Asylum Seeker and the Vulnerable Refugee (February 05, 2015). Forthcoming in V. Chetail, P. De Bruycker & F. Maiani (eds) Reforming the Common European Asylum System: The New European Refugee Law (Martinus Nijhoff, 2015) ; Oxford Legal Studies Research Paper No. 33/2015. Available at SSRN: https://ssrn.com/abstract=2609897

Cathryn Costello (Contact Author)

University of Oxford - Refugee Studies Centre ( email )

Oxford Department of International Development
32 Mansfield Road
Oxford, OX13TB
United Kingdom

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

University of Oxford - Department of International Development ( email )

3 Mansfield Road
Oxford, OX1 3TB
United Kingdom

Emily Hancox

University of Edinburgh, School of Law ( email )

Edinburgh
United Kingdom

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