7 - The EU Fundamental Right to Asylum: In Search of Its Legal Meaning and Effects

Summary

The EU fundamental right to asylum, enshrined in Article 18 of the Charter, has always been a subject of scholarly debate. While some scholars have interpreted Article 18 as limited to a right to seek asylum, others have argued that it also confers an individual right to be granted asylum under certain conditions. Clarifying the scope and effects of the EU fundamental right to asylum is no longer of purely academic interest; courts across the EU are increasingly faced with complaints regarding its violation following the EU’s and Member States’ policy responses to the 2015 refugee crisis. The debate has been fuelled by the broad wording of the EU fundamental right to asylum, defined in relation to the rules of the Refugee Convention and EU Treaties. This chapter considers the scope of Article 18 of the Charter compared to the principle of non-refoulement guaranteed by the 1951 Refugee Convention; the extraterritorial application of the EU fundamental right to asylum and its content; and the main actors contributing to the normative clarification of the right to asylum. The chapter demonstrates the added value of the EU fundamental right to asylum as reflected in its various functions at EU and national levels.