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    The perils of differentiated integration in the field of asylum

    El-Enany, Nadine (2017) The perils of differentiated integration in the field of asylum. In: De Witte, B. and Ott, A. and Monnet, J. (eds.) Between Flexibility and Disintegration: The Trajectory of Differentiation in EU Law. Cheltenham, UK: Edward Elgar Publishing. ISBN 9781783475889.

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    This chapter examines the level of differentiated integration and its consequences in relation to asylum matters in the EU, focusing in particular on the position of the UK. It identifies a distinction between ‘formal differentiation’ and ‘informal flexibility’. Formal differentiation includes the official agreements concluded with the UK, Ireland and Denmark allowing these countries to participate or not to participate in asylum measures to pre-determined degrees. Informal flexibility results from uneven or mal-implementation, which is to some extent tolerated by the EU Institutions. This chapter argues that at the heart of a harmonisation project is the necessity for the limitation of the discretion of participating Member States to legislate differently in a specific area, and this is particularly important with regard to the EU’s asylum project because of the persistence of the Dublin Regulation’s ‘one chance of asylum’ rule. Asylum is not only a field which directly affects the lives of vulnerable individuals, but is heavily regulated by international and human rights norms. It is therefore questionable whether there should be any provision for formal flexibility arrangements. Under current arrangements the UK is in practice permitted to cherry-pick in a highly selective manner, participating in the Dublin system for instance, but refusing to be bound by the legally enforceable minimum standards legislation which arguably comprise one of the few safeguards attached to the Dublin system. Furthermore, the widespread uneven implementation across the EU among Member States bound by the asylum directives constitutes a high level of informal flexibility, putting in jeopardy the protection of asylum seekers. This tension puts a question mark over the extent to which the project of harmonisation of asylum systems can sustain both the existing formal differentiation arrangements and informal flexibility.


    Item Type: Book Section
    Additional Information: This draft chapter has been published by Edward Elgar Publishing in 2017
    School: School of Law > Law
    Depositing User: Administrator
    Date Deposited: 18 Dec 2017 08:29
    Last Modified: 10 Feb 2022 15:41


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