The Minimum Standards of International Protection applicable to the European Union

Since the early 2000s, the EU has developed a common asylum policy, a commitment enshrined in the EU Treaties. Over the years, the Common European Asylum System has undergone major reforms, and in 2020 the European Commission proposed a new set of reforms, the ‘New Pact on Migration and Asylum’. The Pact has been extensively debated by EU legislators and a political agreement was reached in December 2023. The EU now enters a critical phase of negotiations on technical details and clarification of how to implement the Pact. Much of the criticism of the Pact, voiced by academics and other commentators, has concerned the risk that it will lower standards of protection.

Against this background, Elspeth Guild (Jean Monnet Professor ad personam at Queen Mary University) and Maja Grundler (Lecturer in Law, Royal Holloway, University of London) have analysed the legal frameworks that EU Member States have committed to in the field of international protection. The aim is to establish the mandatory minimum standards that apply to the EU, i.e., the requirements that follow from international, European, and EU law.

As the report is designed to support the crafting of further EU and national law, the authors distinguish between binding and non-binding standards. The review covers conventions in the framework of UN and Council of Europe as well as EU primary law. It does not cover EU secondary legislation, such as the proposals in the New Pact on Migration and Asylum, but sets out what EU Member States must consider when drafting and applying such secondary legislation.

The report focuses on four areas relevant to international protection: access to EU territory and protection against expulsion; access to an asylum procedure; reception conditions, including family reunification; and detention (the review thus does not include rights after the asylum process). Each chapter explains what the different sources of law provide for in each area.

In the report, the authors show which legal commitments the EU is bound by and thus also what the Union’s political room for manoeuvre in the area of asylum and migration looks like. As the authors summarise them in brief:

• With regard to access to and expulsion from the territory, states must, first and foremost, uphold the principle of non-refoulement and the prohibition of collective expulsion wherever they exercise jurisdiction.

• They must also ensure protection seekers’ access to the asylum procedure, including for applicants with specific needs, by upholding the principle of non-discrimination and guaranteeing procedural standards in the following areas: registration and documentation; interpretation, information, and legal representation; determination of claims and remedies, as well as in relation to accelerated procedures and inadmissibility procedures.

• States further have to provide adequate reception conditions, including access to employment, housing, welfare, education, health care and free movement, as well as family reunification.

• Finally, states must ensure that immigration detention is not arbitrary, that its lawfulness can be challenged, and that detention conditions do not amount to torture, inhuman or degrading treatment and maintain detainees’ physical and mental wellbeing.

Download the report below. You can also download the executive summary (English and Swedish), as well as a factsheet (in Swedish) which outlines the minimum standards in each of the four areas.