Hit men inte längre - En granskning av EU:s gränshinder och staters förpliktelser att ge tillgång till ett asylförfarande

Sammanfattning: This thesis starts of in the increase of people seeking protection in Europe in the autumn 2015 and spring 2016 and on EU member states actions to handle this. These measures consist, inter alia, of closed borders, erecting barbed wire fences, the establishment of border controls and transit zones and implementation of rapid border procedures. The procedures have been criticized as contrary to the asylum legal framework, particularly to the central principle of non-refoulement and because the procedures result in that the individual's right to have its asylum applications examined in a fair way is undermined. The essay focuses on the conflict between a rights-based approach to migration and the states interest to control its borders, and therefore seeks to identify the EU member states obligations, both in international law and in EU law, to provide a protection seeker in the state's border area access to the asylum procedure and territory and also explores whether this responsibility differs between EU:s internal and external borders and whether measures taken in order to prevent people seeking international protection are allowed under the legal framework of asylum law in Europe. The foundation is the international legal framework with the Refugee Convention, the ECHR and the principle of non-refoulement which EU law is largely based on and refer to. International law also constitutes a lower limit for the State requirements. International asylum law supports the existence of a right to seek asylum and EU law in turn contains a detailed system that regulates states far-reaching obligation to provide access to an asylum procedure. An explicit right to accessing the territory does not exist, neither in international law nor in EU law, but the states obligation under international law may although result in an obligation to admit protection seekers. In theory the obligation does not differ between the internal and external borders. But the design of the regulatory framework, mainly the Dublin regulation, may result in that the states by the external borders will be responsible for trying applications to a larger extent. Further, clashes occur between the asylum framework in international law and the EU framework as international law is based on a focus on the individual, while the EU legal asylum system is based on generalized concepts including safe third country concepts which could lead to dismissal of an application without a material assessment, which has been heavily criticized with the basis in the principle of non-refoulement. In the thesis it is concluded that EU law rules regarding access to the asylum procedure and territory may not live up to the obligations of the international legal framework for asylum. Furthermore, it raises the issue of whether secondary legislation in EU law is compatible with Article 18 of the EU charter of fundamental rights. The thesis also concludes that the value of the asylum legal framework is low for a protection seeker in the border area of a member state as long as the states do not comply with their obligations and the practical possibility to appeal are limited.