In 1997 the European Union (EU) adopted the Amsterdam Treaty [1]. At the same time, not only a new concept of the area of freedom, security and justice was established but a new era for asylum policy was born. Right after the Amsterdam Treaty entered into forced in May 1999, and as a consequence internal borders were abolished and external ones were reinforced, the EU institutions started to discuss a common asylum policy which was identified as Phase I of the Common European Asylum System (CEAS).
During all these years, the EU has encountered serious difficulties at different levels in order to achieve the implementation of the CEAS in the way it was conceived by Tampere [2] and The Hague programmes [3] : “(...) based on the full and inclusive application of the Geneva Convention, thus ensuring that nobody is sent back to persecution, i.e. maintaining the principle of non-refoulement” [4] . The rule of Law in the EU has been questioned and the fragmentation of the public opinion has considerably grown on this issue.
As the EU goes into Phase II of the CEAS, it has to face extraordinary challenges. Firstly, the EU has to solve the status quo created during the implementation of Phase I, in particular restrictions upon asylum seekers’ right to seek protection, detention of asylum seekers, violations of their fundamental rights, refoulement. Secondly, the EU has to reaffirm the supremacy of human rights within CEAS’s policies. Finally, the EU has to ensure that the 1951 Geneva Convention on the Status of Refugees is the cornerstone of the EU’s refugee policy.
In this context, the 2009 Cuenca Colloquium on International Refugee Protection organized by ACCEM [5] and the Refugee Law Reader focused on the development of CEAS Phase II. The objective of the Colloquium “was to provide a clear and complete overview of the current picture of international refugee protection obligations of States, and their observance thereof, and the rights of individuals in need of international protection” [6] . The following are our own personal conclusions from the 2009 Colloquium. The main conclusion is that the Tampere programme should be treated separately in two different compartments: the harmonization of asylum policies on the one hand and migration controls on the other.
Regarding asylum policies
First, a European asylum office should have been implemented since the CEAS was created in 1999, with the specific mandate – unique in Europe – to evaluate asylum claims under the Geneva Convention as well as under international human rights law, including temporary and subsidiary protection. In 2008, the European Parliament proposed the creation of a European Asylum Office (EAO) [7] , which is currently under revision by the Council [8] .
Second, the Dublin II regulation [9] adopted under the Tampere programme is one of the main causes of the current status quo. It not only disrespects the Geneva Convention but also leads to systematic violations of asylum seekers’ human rights. According to this regulation, asylum seekers have to lodge the asylum claim in the first EU country they land on. Although the Geneva Convention does not confer to refugees the right to choose their country of asylum, it is unreasonable to “punish” asylum seekers and prohibit them from choosing the country where they want to claim asylum. The practice of “asylum shopping” denounced by EU Member States is a myth: asylum seekers only want to choose the country in which they will have more opportunities to integrate, based on language, family ties and/or the presence of a community. Therefore, Phase II of the CEAS should primarily suspend all transfers. As an extraordinary measure, it should also require Member States to process the claims of the asylum seekers already present on their territory. This should lead to an amendment to the current Dublin II regulation mandating the respect of the asylum seekers’ choice.
Regarding migrations controls
The EU should have continued and reinforced external cooperation programs, such as the Program for financial and technical assistance to third countries in the areas of migration and asylum (AENEAS) [10] . It seems that, after that effort, even though two Regional Protection Programs were created – one with the newly independent Eastern States and the other with sub-Saharan African/Great Lakes Region States [11] , no other program has had any success. On the contrary, the increasing numbers of bilateral agreements of readmission and safe third country practices have taken the leadership role as a tool for managing and controlling migrations [12] . Member States have very divergent asylum adjudication rates for the same countries of origin: they can vary from 57% to 1%. This is a consequence of opting for a minimum standard of harmonization promoted by Phase I, instead of adopting a maximum standard level based on human rights treaties and the Geneva Convention.
Other concerns arise from the widespread use of detention centres for asylum seekers and their often appalling living conditions, the delays of the transfer procedures due to the Dublin II regulations, the illegal deportation practices between external border Member States and third countries and finally from some Member States’ recurrent contraventions of interim binding measures from the European Court of Human Rights to stop aliens’ deportations.
In summary, the acquis of the CEAS Phase I was implemented with serious inconsistencies regarding international human rights standards. It has also left Member States with a wide margin of appreciation which has resulted in huge differences in rules and practices regarding asylum systems within the EU.
Today, the EU is entering Phase II of the CEAS plagued with a heavy burden remaining to be solved:
• First, it must deal with the situation of asylum seekers being considered part of the “illegally staying third-country nationals” detained in at least 230 detention centres in the EU.
• Second, knowing that every Member State has a sovereign power to control its borders, EU’s external border control agencies like RABIT (Rapid Border Intervention Teams), FRONTEX (European External Borders Agency), EUROSUR (European External Border Surveillance System) are limiting access to EU Member State territory for refugees even though that restriction may violate article 1 of the Geneva Convention. Therefore, the EU has to modify its border control practices in order to allow asylum seekers to lodge asylum claims.
• Third, while the Dublin II regulation should be amended to ensure asylum seekers’ choice of country, it is necessary to stop all transfers – made pursuant to readmission agreements – to third-countries where asylum seekers could be subjected to refoulement and/or returned to their country of origin.
• Finally, it should be a top priority to promote mutual recognition among EU Member States not only of refusals of asylum claims [13], but also of persons receiving refugee status. This would kick start an effective integration process in their favour.
The new framework for the EU police and customs cooperation, the Stockholm Programme [14] , will be presented to ministers of Justice and Home Affairs on 30 November-1 December 2009, and to foreign ministers on 6-7 December 2009. It will address service cooperation, criminal and civil law cooperation, asylum, migration and visa policy for the period 2010-2014. It is yet unclear whether there is enough political will to redirect the EU asylum policy with the appropriate objectives.