Tuesday, 29 September 2020

The Commission ‘Guidance’ on facilitation and humanitarian assistance to migrants




Angelo Marletta*

 

* FNRS Post-doctoral Research Associate at the Centre de Droit Européen of the Université Libre de Bruxelles. I am grateful to Prof. Chloé Brière for her valuable remarks and suggestions.

 

 

1. Background

 

On 23 September 2020 the European Commission presented its ‘Guidance on the implementation of EU rules on definition and prevention of the facilitation of unauthorised entry, transit and residence’ within the New Pact on Migration and Asylum (a first analysis of the main components of the Pact has been made by Steve Peers here). As part of the New Pact, the 'Guidance' intends to translate into soft law the clear statement by President von der Leyen in her 2020 State of the Union address that “saving lives at sea is not optional” and to follow up on a 2018 Resolution of the European Parliament calling for guidelines  to prevent humanitarian assistance from being criminalised.

 

As a matter of fact, the establishment of criminal proceedings against citizens and volunteers of NGOs who had assisted, in different ways, migrants and asylum seekers for humanitarian motives has been a hot topic of debate in recent years. The issue was not entirely unprecedented but since the inception of the so-called ‘migration crisis’ in 2015, these proceedings seem to have occurred more frequently than in the past,  revealing the potentially far-reaching scope of criminalisation of the EU legal instruments on  the facilitation of irregular migration: Directive 2002/90/EC and the Framework Decision 2002/946/JHA (collectively known as the ‘Facilitators Package’). These two instruments have been criticised on that point by several academic studies, reports from think tanks and civil society organizations as well as by the EU Fundamental Rights Agency starting from its first thematic report in 2014. At first, the European Commission appeared well aware of such criticisms when, in the context of the EU Action Plan Against Smuggling (2015-2020), announced a revision of the ‘Facilitators Package’ in 2016. However, eventually this did not happen. In 2017 the Commission in its ‘REFIT Evaluation’ of the Package concluded that there was insufficient evidence to support a legislative revision. The problematic cases of prosecution against individuals acting for humanitarian purposes had rather to be considered as an ‘unintended consequence’ to be addressed through a ‘reinforced exchange of knowledge and good practice’.

 

This wish did not materialise, as just in July 2020 the EU Fundamental Rights Agency reported several criminal proceedings against crew members and shipmasters of NGOs operating search and rescue missions in the Mediterranean.  Still today the new Commission ‘Guidance’ seems to acknowledge that the ‘perceived lack of legal certainty’ surrounding the EU ‘Facilitators Package’ has not yet been dispelled.

 

Against this background and following a quick overview of the relevant legal framework, this contribution will analyse the new 2020 Commission ‘Guidance’. It will in particular discuss how the document can do little to remedy the legal uncertainty on humanitarian assistance to migrants, which potentially violate the principle of legality of offences in criminal matters.  

 

2. Smuggling of migrants under the UN Protocol

 

As the Commission ‘Guidance’ also recalls, the main international instrument providing a definition of smuggling of migrants is the United Nations Protocol against Migrant Smuggling by Land, Sea and Air which supplements the 2000 UN Convention against Transnational Organised Crime (UNTOC). Adopted in 2000, this instrument requires its Parties to criminalize the procurement of irregular entry and the enablement of irregular residence when committed intentionally and ‘in order to obtain, directly or indirectly, a financial or other material benefit’.

 

The purpose of a ‘financial or other material benefit’ is probably the constitutive element that most characterizes criminologically the definition of smuggling in the context of the fight against organized crime: accordingly, under the Protocol the procurement of irregular entry and the enablement of irregular residence is not relevant per se, but as expression of a profitable ‘criminal business model’. Most importantly, the ‘financial or other material benefit’ performs a function of ‘selection’ of the type of conduct to be criminalized according to the Protocol, by excluding from the scope of the offence actions inspired by humanitarian, ideological reasons or based on close family ties. This is notably confirmed by the Travaux Préparatoires of the Protocol and a 2017 ad hoc Concept Paper released by the United Nations Office on Drugs and Crime (UNODC). Nonetheless, the Protocol does not seem to prevent its States Parties from adopting broader definitions of smuggling, f.i., by not including as a basic element of the offence the pursuit of a financial or other material benefit. Art. 34 par. 3 of the UNTOC Convention - which applies also to the Protocol – in fact,  preserves the right of the State Parties to adopt ‘more strict or severe’ standards for preventing and combating transnational organized crime, potentially creating a layer of normative ambiguity at level of international law.

 

3. ‘Facilitation’ under The EU’s Facilitators’ Package

 

As previously mentioned, under EU Law, the criminalization of smuggling and facilitation of irregular residence is the object of two complementary legal instruments dating back to 2002 known  as ‘Facilitators Package’.  Adopted under the institutional framework of the Treaty of Amsterdam, the ‘Facilitators Package’ is composed of a Directive laying down the definition of ‘facilitation’ and a Framework Decision setting out criminal penalties, aggravating circumstances, rules on jurisdiction and on the liability of legal persons. Under the general infringement of facilitation, the Directive defines and requires the criminalization of two separate intentional offences:

 

a) assisting a third country national to irregularly enter or transit across the territory of a Member State

b) assisting, ‘for financial gain’, a third country national to irregularly reside in the  territory of a Member State.

 

Differently from the UN Protocol, the EU definition requires the constitutive element of ‘financial gain’ for the facilitation of unauthorized residence but not for the basic definition of facilitation of unauthorized entry and transit. Altruistic or compassionate acts of ‘humanitarian assistance’, therefore, may potentially be attracted in the scope of application of the offence of facilitation of entry and transit. In regard to this latter, however, the same Directive provides for an optional ‘humanitarian exception’ leaving its implementation at the discretion of the Member States. According to art. 1 para 2 of the Directive, Member States ‘may decide not to impose sanctions’ when the facilitation of unauthorized entry or transit was aimed at providing humanitarian assistance. The optional nature of the humanitarian exception has been questioned from several commentators for both its inability to safeguard the humanitarian principles which supposedly inspire it and for its lack of added value in approximating national criminal laws (see f.i. Peers). It is not surprising, thus, that only a few Member States (BE, EL, ES, FI, HR, IT, MT) have expressly implemented the exception in their national legal frameworks with significant differences as to its scope of applicability. As a way of example, the Italian humanitarian exception - recalled also in the Commission ‘Guidance’ -  exempts from criminalisation acts of humanitarian assistance in favour of migrants who are already ‘present’ on the Italian territory, therefore, raising doubts as to its applicability in the case of facilitation of entry.

  

4. The Commission Guidance: overview of the contents

 

The ‘Guidance’ is an interpretative tool that, according to the Commission, is intended to provide ‘greater clarity’ on the scope of application of the Facilitation Directive.

 

Its contents can be summarised around three main conceptual blocks:

 

-          The relationship between the UN Protocol on Smuggling and the EU Facilitators Package

-          The scope of application the offence of facilitation of irregular entry and transit vis à vis humanitarian assistance ‘mandated by law’

-          A policy recommendation on the optional humanitarian exception

 

As for the relationship between the UN Protocol and the ‘Facilitators Package’, the Commission recalls the broader objective of the latter. The general objective of the EU legal framework on facilitation indeed would be twofold: on the one hand, similarly to the UN Protocol, the fight against organised crime, on the other, the fight against irregular migration. Hence, according to the Commission, the broader scope of criminalisation resulting from the non-inclusion of the purpose of gain in the basic definition of the offence of facilitation of entry and transit would not be in contrast with the definition of the UN Protocol, but rather an expression of the additional (and broader) objective of fighting against irregular migration.

 

Such broader scope of application of the offence of facilitation of entry and transit, however, must be read in light of the ‘general spirit and objective’ of the Facilitators Package and cannot be construed as to imply the criminalisation of humanitarian activity that is ‘mandated by law’. According to the Commission, a specific example of such kind of humanitarian activity is represented by search and rescue (SAR) at sea, since SAR obligations are ‘mandated’ by the Law of the Sea, under several international conventions (the UN Convention on the Law of the Sea, UNCLOS, the International Convention for the Safety of Life at Sea, SOLAS, the International Convention on Maritime Search and Rescue, SAR Convention), and by customary international law.  As such, according to the Commission, the criminalisation of NGOs or any other non-state actors that carry SAR operations in compliance with the relevant legal framework cannot be allowed by EU Law. This applies ‘regardless how the Facilitation Directive is applied under national law’, or in other terms irrespective of whether the Member State implemented or not the ‘humanitarian exception’.

 

In regard to the optional humanitarian exception, the Commission has, first of all, provided an overview of the national rules that explicitly implemented the exception and stressed that, in this context, it is for the national authorities to determine what is meant by ‘humanitarian assistance’, taking into account all the circumstances of the case, and to strike the right balance between the different interests and values at play (recalling the ECtHR case Mallah v. France). As for the Member States that did not implement the exception, the Commissions addresses, as a Policy Recommendation, the invitation to use the possibility provided by art. 1 para 2 of the ‘Facilitation Directive’.

 

5. A mere problem of implementation or a problem of legality?

 

As an effort to gradually approach a complex issue in a difficult political scenario, the Commission ‘Guidance’ it is certainly to be welcomed, but it cannot be regarded as the ‘final word’ of the EU on the matter.

 

Firstly, the 'Guidance' seems mostly - if not only - focused on cases of humanitarian assistance 'mandated by law' and, in particular, to cases of rescue at sea. Surely, the proceedings against NGOs and individuals conducting private SAR operations represent the most striking example of criminalization of solidarity, but they do not exhaust the hypotheses of ‘humanitarian assistance’ we have witnessed in recent years. The humanitarian 'facilitation' of the entry or transit by land clearly does not benefit from the ‘primacy umbrella’ of the Law of the Sea, while the definition of what should be intended as ‘humanitarian assistance mandated by law’ – beyond SAR obligations – remains at least ‘anodyne’. The law, normally, does not prescribe any obligation to donate food or provide shelter to an irregular migrant in transit and yet such a circumstance would not detract anything from the humanitarian nature of such conduct.

 

Secondly, the invitation to all the Member States to ‘use the possibility’ of the optional humanitarian exception foreseen in the Directive, sounds not very satisfactory insofar as it still seems to address the problem as a mere matter of implementation. In contrast, from a criminal law point of view, the problem of the ‘Facilitators Package’ seems to be more and more one of legality, or rather, a problem related to the way of understanding the principle of legality in substantive criminal law. The use of ‘discretionary’ or ‘optional clauses’ in instruments of secondary EU law aimed at approximating substantive criminal law, indeed, might raise questions as to their compatibility with the principle of legality of offences provided in Article 49 of the Charter of Fundamental Rights.

 

Even taking into account the peculiar nature of directives as instruments requiring a national transposition and the limited Union’s legislative competence in that area (art. 83 paras 1 and 2 TFEU), the core of the principle of legality would still require the EU legislator to provide a clear description of the punishable conduct and a reasonable consideration of the interest(s) protected by the offence. In the case of the ‘Facilitators Package’, affirming that an act of 'facilitation' inspired by a humanitarian or altruistic purpose may or may not be criminalised at the discretion of a Member State does not simply entail an implementation option, but rather a completely different balance between the legal interests at stake and, ultimately, a different characterisation of the punishable conduct. In fact, while such an action, determining the irregular entry or transit of the migrant, may affect the legitimate interest in effective border control, on the other hand, it may concretely prevent an harm to the life or to the human dignity of an individual, competing legal interests which are also protected by primary Union law.

 

The reluctance of the EU legislator to determine a baseline balance between these competing legal interests, leaving it to the discretion of the Member States, sits uneasily with the understanding of the principle of legality in the domain of substantive criminal law. This issue was unresolved at the time of adoption of the Facilitators’ Package, determining a structural flaw in the EU definition of the offence of facilitation that cannot be remedied at the level of the interpretation, but only through a legislative revision.  

 

In conclusion, whilst the ‘Guidance’ constitutes a commendable reminder of the law applicable to humanitarian assistance, it is to be hoped that in the near future the Commission will also consider using its power of legislative initiative to align the EU legal framework with international law and the Charter. Its hesitation to engage in the matter at the level of ‘hard law’ on a hard law level, despite its announcement in 2015, echoes to the restrained approach it pursues in other parts of the New Migration Pact and reflects the political sensitivity of the issue of humanitarian assistance to migrants,  unfortunately,  still perceived by some Member States and parts of the European public opinion as a crime deserving to be punished.

 

Barnard & Peers: chapter 26

JHA4: chapter I:7

Photo credit: Sky News


Friday, 25 September 2020

First analysis of the EU’s new asylum proposals




Professor Steve Peers, Law School, University of Essex*

This week the EU Commission published its new package of proposals on asylum and (non-EU) migration – consisting of proposals for legislation, some ‘soft law’, attempts to relaunch talks on stalled proposals and plans for future measures. The following is an explanation of the new proposals (not attempting to cover every detail) with some first thoughts.  Overall, while it is possible that the new package will lead to agreement on revised asylum laws, this will come at the cost of risking reduced human rights standards.

Background

Since 1999, the EU has aimed to create a ‘Common European Asylum System’. A first phase of legislation was passed between 2003 and 2005, followed by a second phase between 2010 and 2013. Currently the legislation consists of: a) the Qualification Directive, which defines when people are entitled to refugee status (based on the UN Refugee Convention) or subsidiary protection status, and what rights they have; b) the Dublin III Regulation, which allocates responsibility for an asylum seeker between Member States; c) the Eurodac Regulation, which facilitates the Dublin system by setting up a database of fingerprints of asylum seekers and people who cross the external border without authorisation;  d) the Asylum Procedures Directive, which sets out the procedural rules governing asylum applications, such as personal interviews and appeals; e) the Reception Conditions Directive, which sets out standards on the living conditions of asylum-seekers, such as rules on housing and welfare; and f) the Asylum Agency Regulation, which set up an EU agency (EASO) to support Member States’ processing of asylum applications.

The EU also has legislation on other aspects of migration: (short-term) visas, border controls, irregular migration, and legal migration – much of which has connections with the asylum legislation, and all of which is covered by this week’s package. For visas, the main legislation is the visa list Regulation (setting out which non-EU countries’ citizens are subject to a short-term visa requirement, or exempt from it) and the visa code (defining the criteria to obtain a short-term Schengen visa, allowing travel between all Schengen states).  The visa code was amended last year, as discussed here.

For border controls, the main legislation is the Schengen Borders Code, setting out the rules on crossing external borders and the circumstances in which Schengen states can reinstate controls on internal borders, along with the Frontex Regulation, setting up an EU border agency to assist Member States. On the most recent version of the Frontex Regulation, see discussion here and here.

For irregular migration, the main legislation is the Return Directive. The Commission proposed to amend it in 2018 – on which, see analysis here and here.

For legal migration, the main legislation on admission of non-EU workers is the single permit Directive (setting out a common process and rights for workers, but not regulating admission); the Blue Card Directive (on highly paid migrants, discussed here); the seasonal workers’ Directive (discussed here); and the Directive on intra-corporate transferees (discussed here).  The EU also has legislation on: non-EU students, researchers and trainees (overview here); non-EU family reunion (see summary of the legislation and case law here) and on long-term resident non-EU citizens (overview – in the context of UK citizens after Brexit – here). In 2016, the Commission proposed to revise the Blue Card Directive (see discussion here).

The UK, Ireland and Denmark have opted out of most of these laws, except some asylum law applies to the UK and Ireland, and Denmark is covered by the Schengen and Dublin rules. So are the non-EU countries associated with Schengen and Dublin (Norway, Iceland, Switzerland and Liechtenstein). There are also a number of further databases of non-EU citizens as well as Eurodac: the EU has never met a non-EU migrant who personal data it didn’t want to store and process.

The Refugee ‘Crisis’

The EU’s response to the perceived refugee ‘crisis’ was both short-term and long-term. In the short term, in 2015 the EU adopted temporary laws (discussed here) relocating some asylum seekers in principle from Italy and Greece to other Member States. A legal challenge to one of these laws failed (as discussed here), but in practice Member States accepted few relocations anyway. Earlier this year, the CJEU ruled that several Member States had breached their obligations under the laws (discussed here), but by then it was a moot point.

Longer term, the Commission proposed overhauls of the law in 2016: a) a Qualification Regulation further harmonising the law on refugee and subsidiary protection status; b) a revised Dublin Regulation, which would have set up a system of relocation of asylum seekers for future crises; c) a revised Eurodac Regulation, to take much more data from asylum seekers and other migrants;  d) an Asylum Procedures Regulation, further harmonising the procedural law on asylum applications; e) a revised Reception Conditions Directive; f) a revised Asylum Agency Regulation, giving the agency more powers; and g) a new Resettlement Regulation, setting out a framework of admitting refugees directly from non-EU countries.  (See my comments on some of these proposals, from back in 2016)

However, these proposals proved unsuccessful – which is the main reason for this week’s attempt to relaunch the process. In particular, an EU Council note from February 2019 summarises the diverse problems that befell each proposal. While the EU Council Presidency and the European Parliament reached agreement on the proposals on qualification, reception conditions and resettlement in June 2018, Member States refused to support the Presidency’s deal and the European Parliament refused to renegotiate (see, for instance, the Council documents on the proposals on qualification and resettlement; see also my comments on an earlier stage of the talks, when the Council had agreed its negotiation position on the qualification regulation).

On the asylum agency, the EP and Council agreed on the revised law in 2017, but the Commission proposed an amendment in 2018 to give the agency more powers; the Council could not agree on this. On Eurodac, the EP and Council only partly agreed on a text. On the procedures Regulation, the Council largely agreed its position, except on border procedures; on Dublin there was never much prospect of agreement because of the controversy over relocating asylum seekers. (For either proposal, a difficult negotiation with the European Parliament lay ahead).

In other areas too, the legislative process was difficult: the Council and EP gave up negotiating amendments to the Blue Card Directive (see the last attempt at a compromise here, and the Council negotiation mandate here), and the EP has not yet agreed a position on the Returns Directive (the Council has a negotiating position, but again it leaves out the difficult issue of border procedures; there is a draft EP position from February). Having said that, the EU has been able to agree legislation giving more powers to Frontex, as well as new laws on EU migration databases, in the last few years.

The attempted relaunch

The Commission’s new Pact on asylum and immigration (see also the roadmap on its implementation, the Q and As, and the staff working paper) does not restart the whole process from scratch. On qualification, reception conditions, resettlement, the asylum agency, the returns Directive and the Blue Card Directive, it invites the Council and Parliament to resume negotiations. But it tries to unblock the talks as a whole by tabling two amended legislative proposals and three new legislative proposals, focussing on the issues of border procedures and relocation of asylum seekers.

Screening at the border

This revised proposals start with a new proposal for screening asylum seekers at the border, which would apply to all non-EU citizens who cross an external border without authorisation, who apply for asylum while being checked at the border (without meeting the conditions for legal entry), or who are disembarked after a search and rescue operation. During the screening, these non-EU citizens are not allowed to enter the territory of a Member State, unless it becomes clear that they meet the criteria for entry. The screening at the border should take no longer than 5 days, with an extra 5 days in the event of a huge influx. (It would also be possible to apply the proposed law to those on the territory who evaded border checks; for them the deadline to complete the screening is 3 days).

Screening has six elements, as further detailed in the proposal: a health check, an identity check, registration in a database, a security check, filling out a debriefing form, and deciding on what happens next.  At the end of the screening, the migrant is channelled either into the expulsion process (if no asylum claim has been made, and if the migrant does not meet the conditions for entry) or, if an asylum claim is made, into the asylum process – with an indication of whether the claim should be fast-tracked or not. It’s also possible that an asylum seeker would be relocated to another Member State. The screening is carried out by national officials, possibly with support from EU agencies.

To ensure human rights protection, there must be independent monitoring to address allegations of non-compliance with human rights. These allegations might concern breaches of EU or international law, national law on detention, access to the asylum procedure, or non-refoulement (the ban on sending people to an unsafe country). Migrants must be informed about the process and relevant EU immigration and data protection law. There is no provision for judicial review of the outcome of the screening process, although there would be review as part of the next step (asylum or return).

Asylum procedures

The revised proposal for an asylum procedures Regulation would leave in place most of the Commission’s 2016 proposal to amend the law, adding some specific further proposed amendments, which either link back to the screening proposal or aim to fast-track decisions and expulsions more generally.  

On the first point, the usual rules on informing asylum applicants and registering their application would not apply until after the end of the screening. A border procedure may apply following the screening process, but Member States must apply the border procedure in cases where an asylum seeker used false documents, is a perceived national security threat, or falls within the new ground for fast-tracking cases (on which, see below).  The latter obligation is subject to exceptions where a Member State has reported that a non-EU country is not cooperating on readmission; the process for dealing with that issue set out under the 2019 amendments to the visa code will then apply. Also, the border process cannot apply to unaccompanied minors or children under 12, unless they are a supposed national security risk. Further exceptions apply where the asylum seeker is vulnerable or has medical needs, the application is not inadmissible or cannot be fast-tracked, or detention conditions cannot be guaranteed. A Member State might apply the Dublin process to determine which Member State is responsible for the asylum claim during the border process. The whole border process (including any appeal) must last no more than 12 weeks, and can only be used to declare applications inadmissible or apply the new ground for fast-tracking them.

There would also be a new border expulsion procedure, where an asylum application covered by the border procedure was rejected. This is subject to its own 12-week deadline, starting from the point when the migrant is no longer allowed to remain. Much of the Return Directive would apply – but not the provisions on the time period for voluntary departure, remedies and the grounds for detention. Instead, the border expulsion procedure would have its own stricter rules on these issues.

As regards general fast-tracking, in order to speed up the expulsion process for unsuccessful applications, a rejection of an asylum application would have to either incorporate an expulsion decision or entail a simultaneous separate expulsion decision. Appeals against expulsion decisions would then be subject to the same rules as appeals against asylum decisions. If the asylum seeker comes from a country with a refugee recognition rate below 20%, his or her application must be fast-tracked (this would even apply to unaccompanied minors) – unless circumstances in that country have changed, or the asylum seeker comes from a group for whom the low recognition rate is not representative (for instance, the recognition rate might be higher for LGBT asylum-seekers from that country). Many more appeals would be subject to a one-week time limit for the rejected asylum seeker to appeal, and there could be only one level of appeal against decisions taken within a border procedure.

Eurodac

The revised proposal for Eurodac would build upon the 2016 proposal, which was already far-reaching: extending Eurodac to include not only fingerprints, but also photos and other personal data; reducing the age of those covered by Eurodac from 14 to 6; removing the time limits and the limits on use of the fingerprints taken from persons who had crossed the border irregularly; and creating a new obligation to collect data of all irregular migrants over age 6 (currently fingerprint data for this group cannot be stored, but can simply be checked, as an option, against the data on asylum seekers and irregular border crossers). The 2020 proposal additionally provides for interoperability with other EU migration databases, taking of personal data during the screening process, including more data on the migration status of each person, and expressly applying the law to those disembarked after a search and rescue operation.  

Dublin rules on asylum responsibility

A new proposal for asylum management would replace the Dublin regulation (meaning that the Commission has withdrawn its 2016 proposal to replace that Regulation). The 2016 proposal would have created a ‘bottleneck’ in the Member State of entry, requiring that State to examine first whether many of the grounds for removing an asylum-seeker to a non-EU country apply before considering whether another Member State might be responsible for the application (because the asylum seeker’s family live there, for instance). It would also have imposed obligations directly on asylum-seekers to cooperate with the process, rather than only regulate relations between Member States. These obligations would have been enforced by punishing asylum seekers who disobeyed: removing their reception conditions (apart from emergency health care); fast-tracking their substantive asylum applications; refusing to consider new evidence from them; and continuing the asylum application process in their absence.

It would no longer be possible for asylum seekers to provide additional evidence of family links, with a view to being in the same country as a family member. Overturning a CJEU judgment (see further discussion here), unaccompanied minors would no longer have been able to make applications in multiple Member States (in the absence of a family member in any of them). However, the definition of family members would have been widened, to include siblings and families formed in a transit country.  Responsibility for an asylum seeker based on the first Member State of irregular entry (a commonly applied criterion) would have applied indefinitely, rather than expire one year after entry as it does under the current rules. The ‘Sangatte clause’ (responsibility after five months of living in a second Member State, if the ‘irregular entry’ criterion no longer applies) would be dropped. The ‘sovereignty clause’, which played a key part in the 2015-16 refugee ‘crisis’ (it lets a Member State take responsibility for any application even if the Dublin rules do not require it, cf Germany accepting responsibility for Syrian asylum seekers) would have been sharply curtailed. Time limits for detention during the transfer process would be reduced.  Remedies for asylum seekers would have been curtailed: they would only have seven days to appeal against a transfer; courts would have fifteen days to decide (although they could have stayed on the territory throughout); and the grounds of review would have been curtailed.

Finally, the 2016 proposal would have tackled the vexed issue of disproportionate allocation of responsibility for asylum seekers by setting up an automated system determining how many asylum seekers each Member State ‘should’ have based on their size and GDP. If a Member State were responsible for excessive numbers of applicants, Member States which were receiving fewer numbers would have to take more to help out. If they refused, they would have to pay €250,000 per applicant.

The 2020 proposal drops some of the controversial proposals from 2016, including the ‘bottleneck’ in the Member State of entry (the current rule, giving Member States an option to decide if a non-EU country is responsible for the application on narrower grounds than in the 2016 proposal, would still apply). Also, the sovereignty clause would now remain unchanged.

However, the 2020 proposal also retains parts of the 2016 proposal: the redefinition of ‘family member’ (which could be more significant now that the bottleneck is removed, unless Member States choose to apply the relevant rules on non-EU countries’ responsibility during the border procedure already); obligations for asylum seekers (redrafted slightly); some of the punishments for non-compliant asylum-seekers (the cut-off for considering evidence would stay, as would the loss of benefits except for those necessary to ensure a basic standard of living: see the CJEU case law in CIMADE and Haqbin); dropping the provision on evidence of family links; changing the rules on responsibility for unaccompanied minors; retaining part of the changes to the irregular entry criterion (it would now cease to apply after three years; the Sangatte clause would still be dropped; it would apply after search and rescue but not apply in the event of relocation); curtailing judicial review (the grounds would still be limited; the time limit to appeal would be 14 days; courts would not have a strict deadline to decide; suspensive effect would not apply in all cases); and the reduced time limits for detention.

The wholly new features of the 2020 proposal are: some vague provisions about crisis management; responsibility for an asylum application for the Member State which issued a visa or residence document which expired in the last three years (the current rule is responsibility if the visa expired less than six months ago, and the residence permit expired less than a year ago); responsibility for an asylum application for a Member State in which a non-EU citizen obtained a diploma; and the possibility for refugees or persons with subsidiary protection status to obtain EU long-term resident status after three years, rather than five.

However, the most significant feature of the new proposal is likely to be its attempt to solve the underlying issue of disproportionate allocation of asylum seekers. Rather than a mechanical approach to reallocating responsibility, the 2020 proposal now provides for a menu of ‘solidarity contributions’: relocation of asylum seekers; relocation of refugees; ‘return sponsorship’; or support for ‘capacity building’ in the Member State (or a non-EU country) facing migratory pressure. There are separate rules for search and rescue disembarkations, on the one hand, and more general migratory pressures on the other. Once the Commission determines that the latter situation exists, other Member States have to choose from the menu to offer some assistance. Ultimately the Commission will adopt a decision deciding what the contributions will be. Note that ‘return sponsorship’ comes with a ticking clock: if the persons concerned are not expelled within eight months, the sponsoring Member State must accept them on its territory.

Crisis management

The issue of managing asylum issues in a crisis has been carved out of the Dublin proposal into a separate proposal, which would repeal an EU law from 2001 that set up a framework for offering ‘temporary protection’ in a crisis. Note that Member States have never used the 2001 law in practice.

Compared to the 2001 law, the new proposal is integrated into the EU asylum legislation that has been adopted or proposed in the meantime. It similarly applies in the event of a ‘mass influx’ that prevents the effective functioning of the asylum system. It would apply the ‘solidarity’ process set out in the proposal to replace the Dublin rules (ie relocation of asylum seekers and other measures), with certain exceptions and shorter time limits to apply that process.

The proposal focusses on providing for possible exceptions to the usual asylum rules. In particular, during a crisis, the Commission could authorise a Member State to apply temporary derogations from the rules on border asylum procedures (extending the time limit, using the procedure to fast-track more cases), border return procedures (again extending the time limit, more easily justifying detention), or the time limit to register asylum applicants. Member States could also determine that due to force majeure, it was not possible to observe the normal time limits for registering asylum applications, applying the Dublin process for responsibility for asylum applications, or offering ‘solidarity’ to other Member States.

Finally, the new proposal, like the 2001 law, would create a potential for a form of separate ‘temporary protection’ status for the persons concerned. A Member State could suspend the consideration of asylum applications from people coming from the country facing a crisis for up to a year, in the meantime giving them status equivalent to ‘subsidiary protection’ status in the EU qualification law. After that point it would have to resume consideration of the applications. It would need the Commission’s approval, whereas the 2001 law left it to the Council to determine a situation of ‘mass influx’ and provided for the possible extension of the special rules for up to three years.

Other measures

The Commission has also adopted four soft law measures. These comprise: a Recommendation on asylum crisis management; a Recommendation on resettlement and humanitarian admission; a Recommendation on cooperation between Member States on private search and rescue operations; and guidance on the applicability of EU law on smuggling of migrants – notably concluding that it cannot apply where (as in the case of law of the sea) there is an obligation to rescue (see further analysis here).

On other issues, the Commission plan is to use current legislation – in particular the recent amendment to the visa code, which provides for sticks to make visas more difficult to get for citizens of countries which don’t cooperate on readmission of people, and carrots to make visas easier to get for citizens of countries which do cooperate on readmission. In some areas, such as the Schengen system, there will be further strategies and plans in the near future; it is not clear if this will lead to more proposed legislation.

However, on legal migration, the plan is to go further than relaunching the amendment of the Blue Card Directive, as the Commission is also planning to propose amendments to the single permit and long-term residence laws referred to above – leading respectively to more harmonisation of the law on admission of non-EU workers and enhanced possibilities for long-term resident non-EU citizens to move between Member States (nb the latter plan is separate from this week’s proposal to amend this law as regards refugees and people with subsidiary protection already). Both these plans are relevant to British citizens moving to the EU after the post-Brexit transition period – and the latter is also relevant to British citizens covered by the withdrawal agreement.

Comments

This week’s plan is less a complete restart of EU law in this area than an attempt to relaunch discussions on a blocked set of amendments to that law, which moreover focusses on a limited set of issues. Will it ‘work’? There are two different ways to answer that question.

First, will it unlock the institutional blockage? Here it should be kept in mind that the European Parliament and the Council had largely agreed on several of the 2016 proposals already; they would have been adopted in 2018 already had not the Council treated all the proposals as a package, and not gone back on agreements which the Council Presidency reached with the European Parliament. It is always open to the Council to get at least some of these proposals adopted quickly by reversing these approaches.

On the blocked proposals, the Commission has targeted the key issues of border procedures and allocation of asylum-seekers. If the former leads to more quick removals of unsuccessful applicants, the latter issue is no longer so pressing. But it is not clear if the Member States will agree to anything on border procedures, or whether such an agreement will result in more expulsions anyway – because the latter depends on the willingness of non-EU countries, which the EU cannot legislate for (and does not even address in this most recent package). And because it is uncertain whether they will result in more expulsions, Member States will be wary of agreeing to anything which either results in more obligations to accept asylum-seekers on their territory, or leaves them with the same number as before.

The idea of ‘return sponsorship’ – which reads like a grotesque parody of individuals sponsoring children in developing countries via charities – may not be appealing except to those countries like France, which have the capacity to twist arms in developing countries to accept returns. Member States might be able to agree on a replacement for the temporary protection Directive on the basis that they will never use that replacement either. And Commission threats to use infringement proceedings to enforce the law might not worry Member States who recall that the CJEU ruled on their failure to relocate asylum-seekers after the relocation law had already expired, and that the Court will soon rule on Hungary’s expulsion of the Central European University after it has already left.

As to whether the proposals will ‘work’ in terms of managing asylum flows fairly and compatibly with human rights, it is striking how much they depend upon curtailing appeal rights, even though appeals are often successful. The proposed limitation of appeal rights will also be maintained in the Dublin system; and while the proposed ‘bottleneck’ of deciding on removals to non-EU countries before applying the Dublin system has been removed, a variation on this process may well apply in the border procedures process instead. There is no new review of the assessment of the safety of non-EU countries – which is questionable in light of the many reports of abuse in Libya. While the EU is not proposing, as the wildest headbangers would want, to turn people back or refuse applications without consideration, the question is whether the fast-track consideration of applications and then appeals will constitute merely a Potemkin village of procedural rights that mean nothing in practice.

Increased detention is already a feature of the amendments proposed earlier: the reception conditions proposal would add a new ground for detention; the return Directive proposal would inevitably increase detention due to curtailing voluntary departure (as discussed here). Unfortunately the Commission’s claim in its new communication that its 2018 proposal is ‘promoting’ voluntary return is therefore simply false. Trump-style falsehoods have no place in the discussion of EU immigration or asylum law.

The latest Eurodac proposal would not do much compared to the 2016 proposal – but then, the 2016 proposal would already constitute an enormous increase in the amount of data collected and shared by that system.

Some elements of the package are more positive. The possibility for refugees and people with subsidiary protection to get EU long-term residence status earlier would be an important step toward making asylum ‘valid throughout the Union’, as referred to in the Treaties.  The wider definition of family members, and the retention of the full sovereignty clause, may lead to some fairer results under the Dublin system. Future plans to improve the long-term residents’ Directive are long overdue. The Commission’s sound legal assessment that no one should be prosecuted for acting on their obligations to rescue people in distress at sea is welcome. The quasi-agreed text of the reception conditions Directive explicitly rules out Trump-style separate detention of children.

No proposals from the EU can solve the underlying political issue: a chunk of public opinion is hostile to more migration, whether in frontline Member States, other Member States, or transit countries outside the EU. The politics is bound to affect what Member States and non-EU countries alike are willing to agree to. And for the same reason, even if a set of amendments to the system is ultimately agreed, there will likely be continuing issues of implementation, especially illegal pushbacks and refusals to accept relocation.

Barnard & Peers: chapter 26

JHA4: chapter I:3, chapter I:4, chapter I:5, chapter I:6, chapter I:7

Photo credit: DW

*I have worked as an independent consultant for the impact assessment regarding the background of some of this week’s proposals. My views are, however, independent of any EU institution or Member State. 





Friday, 28 August 2020

The proposed recast of the EU Returns Directive: voluntary return under threat?


 

Christian Mommers, external PhD candidate at the Europa Institute of the Leiden University Law School and Adviser to the Commissioner for Human Rights of the Council of Europe*

* Views expressed are solely the author’s

 

Discussions on the European Commission’s proposal for a recast of the Returns Directive (Directive 2008/115/EC), which it published in September 2018, are likely to gain speed after the summer. Among a range of other issues, which may well claim the limelight, the proposed recast has important implications for voluntary return. Voluntary return, in brief, relates to the granting of a period when the member state refrains from enforcement and during which the individual has an opportunity to meet the obligation to return of his own accord. Although giving such an opportunity is a key principle of the Directive, the proposal seeks to open the possibility of giving only very short periods for voluntary return, would make denial of a voluntary departure period mandatory rather than discretionary in some cases, and introduces criteria that could result in a wide-ranging application of exceptions to the general rule that voluntary departure should be possible. 

This seems to confirm a trend in which the granting of a possibility to return voluntarily is seen as a hindrance, rather than an integral part of, a fair and effective return procedure. This follows increasing concerns from both member states and the Commission that return rates are too low, an issue that has become even more salient in the wake of the increased arrivals of asylum seekers and migrants in 2015 and 2016, and the political panic that followed it.

In this post, I will discuss some of the key issues that have the potential to put at risk the priority of voluntary as a central legal principle underpinning EU return policy. These observations result from my own PhD research on the scope and limits of individual responsibility of third-country nationals faced with voluntary return, but to a considerable extent they overlap with, and are complemented by, the analyses and commentaries of others. This includes the EU’s Fundamental Rights Agency, NGOs like Amnesty International, the European Council on Refugees and Exiles (ECRE), as well posts by Peers and Majcher, among others.

Although important in their own right, and relevant to the overall question of voluntary return, this post will not deal with proposals for enhanced return assistance and counselling, which deserve separate attention. Neither does it address other problematic elements of the recast proposal, such as the introduction of a border procedure, limiting remedies, and a widening of detention possibilities, each of which are discussed in detail in the above-mentioned publications.

Where we are in the process

Before going into the substance, a quick update on the process is in order. As noted, a recast proposal was published by the Juncker Commission almost two years ago. In May 2019, the Council adopted a partial general approach. Consideration in the European Parliament had started, and a draft report was published by the Rapporteur of the Civil Liberties, Justice and Home Affairs Committee (LIBE), but work was interrupted by the 2019 elections. In June of this year, the new Rapporteur, Tineke Strik MEP, published her draft report, on which discussions in Committee and subsequently in the plenary will have to continue after the summer recess. The quick adoption of a recast Returns Directive will likely also be identified as a priority action in the upcoming EU Pact on Asylum and Migration.

The priority of voluntary return

The impact and legitimacy of the Commission’s proposals cannot be understood properly without first considering the role that the priority of voluntary return plays. Both in the current Directive (recital 10), and in the proposal (new recital 13), a general principle is formulated that voluntary return should be preferred over forced return “[w]here there are no reasons this would undermine the purpose of a return procedure.” Although one of the purposes of the Directive is to ensure persons who are not or no longer authorised to stay in an EU member state – “illegally staying third-country nationals” in the language of the Directive – effectively return, it is not the only one. Of particular importance is the aim to provide fair and transparent rules for returns, which should guarantee the fundamental rights and dignity of those required to return. The assumption that voluntary return would provide third-country nationals with a more ‘humane and dignified’ way of returning has historically been an important driving force behind the inclusion of the priority of voluntary return within the EU legal framework for returns. In its only judgment on the specific interpretation of the Directive’s provisions on voluntary return so far, the Zh. and. O. case (discussed here), the CJEU has clearly recognised that the granting of a voluntary departure period serves “inter alia, to ensure that the fundamental rights of those nationals are observed in the implementation of a return decision,” (paragraph 47) and thus plays a key role in balancing these objectives. By giving an opportunity to return voluntarily, the third-country national can avoid detention and removal by coercive means, thus acting as a kind of proportionality mechanism.

Extremely short voluntary departure periods

Under the current Directive, member states should normally issue an appropriate voluntary departure period of between seven and thirty days (Article 7(1)). They can issue a period that is shorter than seven days (or refrain from issuing such a period completely) only if one of the three grounds for exceptions, described in more detail below, would apply. The Commission’s proposal, by contrast, requires member states to issue a voluntary departure period of “up to thirty days” (new Article 9(1)), abolishing the lower limit of seven days. This would allow member states to issue extremely short voluntary departure periods, even in the absence of any ground for exceptions.

However, member states cannot be assumed to have full discretion over the length of the period accorded. Under both the current Directive and the recast proposal, such a period should be “appropriate”. While this is increasingly framed as giving the shortest possible period (for example in a 2017 Commission Recommendation and in the Return Handbook), a reading in line with the above-mentioned CJEU judgment would require member states to provide, in good faith, a period that would give the third-country national a realistic opportunity to return voluntarily. What is appropriate in such a situation will depend on his or her circumstances, and should draw upon knowledge about time-frames for return to specific countries of origin or transit. In practice, even the current minimum period of seven days will be insufficient to offer a realistic chance of returning voluntarily in all but the most advantageous situations, for example when the third-country national has valid travel documents and transport is available at short notice. In most other cases, it will fall short of being appropriate for the effective enjoyment of the opportunity to return voluntarily. This problem will only be compounded if states are able to issue even shorter periods. Although this problem may be offset to some extent by the requirement that any voluntary departure period is extended “where necessary” (Article 7(2) of the current Directive and maintained in the recast proposal), the current formulation in the proposal, in my view, does too little to reflect the role of the voluntary departure period as a mechanism to protect fundamental rights.

Mandatory denial of a voluntary departure period

As noted above, the current Directive allows member states to shorten or deny a voluntary departure period if relevant grounds to make exceptions apply. This is the case if (1) the person’s application for legal stay has been dismissed as manifestly unfounded or fraudulent; (2) there is a risk to public policy, public security or national security; or (3) there is a risk of absconding (Article 7(4)). The latter must be grounded in reasons in the individual case based on objective criteria set out in law (Article 3(7)). While the recast proposal maintains these grounds, it would make denial of a voluntary departure period mandatory in all three situations (new Article 9(1)). If this would be applied as a general practice, it would raise questions about the compatibility with the key role of voluntary return in protecting fundamental rights. At the very least, this would have to be subject to further clarification that such a decision should still be subject to the principle of proportionality. While the recast, like the current Directive, requires all decisions to be taken on a case-by-case basis (recital 6), the proposal to make denial mandatory may create confusion over this.

The turn towards mandatory denial is particularly problematic as the situations in which the grounds for exceptions apply look to be expanding. For example, the 2016 proposal for a new Asylum Procedure Regulation (APR) sought to introduce the mandatory practice that member states, when rejecting an asylum application by a person from a so-called ‘safe country of origin’, should not just dismiss such an application as unfounded, but as manifestly unfounded. Under the recast Returns Directive, this would then automatically trigger a denial of a voluntary departure period for all who have been subject to such a dismissal. The list of safe countries used by various member states furthermore includes many key countries to which individuals currently return voluntarily. As a result, a large number of people currently able to return voluntarily would be deprived of that possibility.

The Commission may seek to review the APR proposal as part of the new Pact, so it remains to be seen if this is maintained. However, if both proposals are taken forward in the current form, and other grounds for the deprivation of a voluntary departure period are expanded as well (see below), this may bring virtually all, or at least a majority, of persons within the scope of the Directive under one of these grounds for denial. This would risk reversing the relationship between the rule and the exception, and thus negate the priority of voluntary return.

Indicators of a risk of absconding

The denial of a voluntary departure period on the basis that there is a risk of absconding arguably has the greatest potential for states to undermine the priority of voluntary return (see, for example, Baldaccini 2009). The current Directive requires states to set objective criteria in law that would indicate such a risk. In practice, member states have set very wide-ranging criteria (as in this REDIAL report). In its recast proposal, the Commission aims to harmonise this by setting a non-exhaustive list of 16 criteria which member states should, as a minimum, include in their law (new Article 6). Four of these criteria would furthermore create rebuttable presumptions of a risk of absconding. While the goal of harmonisation is commendable, the list itself has been criticised as vague and broad, potentially only aggravating existing problems with the use (and abuse) of a risk of absconding as a means to deny an opportunity for voluntary return. While it would go too far to discuss all the criteria proposed, I will outline some more general principles which they should meet, and point to some of the more problematic proposals in this respect.

First, the criteria must be fit for purpose. This means they must actually be able to indicate a risk of absconding. The Directive only defines a risk of absconding in relation to the setting of objective criteria, but nowhere clarifies the meaning of ‘absconding’ itself. As a result, ‘absconding’ must be interpreted by its normal meaning, which is commonly defined in relation to disappearing off the radar of the authorities, or trying to evade control or capture. In various language versions, this meaning is more explicit, referring to a risk of escaping or flight (Fluchtgefahr, risque de fuite, riesgo de fuga) or  a risk of going underground (e.g. risico op onderduiken in the Dutch version) (Article 3(7)). In this way, absconding is distinct from issues of non-compliance or non-cooperation by the individual. These issues are relevant to the question whether a return should be enforced. The Directive clearly takes into account the possibility that an individual will not comply voluntarily, and has an answer to this in the form of clear provisions on enforcement. The purpose of ensuring that the person does not abscond during the voluntary departure period is thus not to ensure compliance or cooperation as such, but to guarantee he or she is available for enforcement when the voluntary departure period ends. It is also for this reason that the Directive provides for the imposition of measures to prevent absconding during the voluntary departure period, such as financial guarantees, confiscation of documents, or reporting duties (Article 7(3)). The logic of the priority of voluntary return would also dictate that a member state makes use of these measures if this would effectively ensure that a voluntary departure period could still be granted.

Despite this limited meaning of ‘absconding’ some criteria go beyond this. One of these is that the risk of absconding would be indicated by the individual’s explicit expression of intent of non-compliance with return-related measures (new Article 6(1)(e)). As discussed above, this is something quite different from intending to abscond. For example, a person may say that he or she does not want to return, but in the meantime stay in view of the authorities by staying in government-provided accommodation or meeting reporting requirements. Furthermore, such a criterion ignores the possibility that a person’s intention of complying may change during the voluntary departure period, especially as the prospect of removal, and possibly detention, draws nearer.

Another factor limiting the use of the risk of absconding is the requirement that all decisions related to the return procedure must be made on the basis of individual circumstances, with considerations going beyond the “mere fact of illegal stay”. This makes sense because illegal stay is already the reason why a person comes within the scope of the Directive and must return. If that same fact could be used to deny a voluntary departure period, this would give member state the opportunity to do so in all cases. It would thus create a double jeopardy-like situation. Despite this clearly not being compatible with the Directive, a number of proposed indicators skirt uncomfortably close to the “mere fact of illegal stay”. This is particularly the case for indicators such as those relating to irregular entry (new Article 6(1)(d) or the lack of documents (new Article 6(1)(a). Both of these are not only common occurrences for persons coming without the scope of the Directive, but they may also directly create the fact of irregular stay itself. This does not mean that these facts are necessarily meaningless. However, it would be up to the member state to show that particular circumstances of an individual’s irregular entry, or the manner in which he or she became undocumented (such as the deliberate destruction of documents), provide evidence that there is a concrete risk of absconding.

Other criteria also raise questions, such as the individual being a subject of a criminal investigation or proceeding (new Article 6(1)(l)). This may provide member states with a backdoor to circumvent the arguably higher threshold for denying a voluntary departure period because he or she poses a risk to public policy, which has been the subject of extensive clarification by the CJEU in the Zh. and O. judgment.

In general, the long list of proposed indicators (which is not exhaustive for member states), in combination with their very general nature and common occurrence provide for a very blunt instrument, which does not match the requirement of an individualised approach which, as a starting point, aims to give a fair opportunity to return voluntarily. At the very least, they would require a much more nuanced application, which cannot become a ‘tick-the-box’ exercise. Furthermore, the creation of a rebuttable presumption of a risk of absconding in specific cases would reverse the burden of proof, which is difficult to reconcile with the fact that the member state is acting in a manner that may constraint fundamental rights, and thus needs to bear the responsibility of justifying them.

Conclusions

The Commission’s approach to the priority of voluntary return is highly ambiguous. On the one hand, it is seeking to reinforce assistance for voluntary returns, even proposing to include a requirement that member states set up programmes to this end in the recast Directive (new Article 14(3)). However, while historically being the key advocate for prioritising voluntary return, some of the Commission’s proposals now look to undermine this priority. As discussed, this does not only raise questions of compatibility with the objectives of the Directive and the protection of fundamental rights more generally. Backpedalling on the priority of voluntary return may also be short-sighted from the perspective of ensuring effective return. Frontex data shows that, over the last years, voluntary returns have contributed to almost half of all verifiable returns, and presumably at a cost much lower than forced return (Annex Table 13). If the low number of effective returns is indeed such a concern, limiting opportunities for voluntary return seems a non-solution. Furthermore, as the lack of cooperation by countries of origin with return and readmission is becoming an increasingly prominent issue (warranting even explicit mention in the recast proposal, see new Recital 47), turning away from voluntary returns may be the worst option from an international relations perspective. Cooperation is likely more forthcoming if countries see that the EU is promoting and facilitating the voluntary return of their citizens, rather than resorting to more repressive means as its main response. The priority of voluntary return has been emphasised in several cooperation frameworks with countries of origin, and in some cases countries of origin have even explicitly limited their cooperation to voluntary return cases.

Luckily, it is by no means evident that the proposed changes will end up being adopted by the co-legislators, as current positions are still far apart. On the issue of short voluntary departure periods, while the Council appears to accept, or at least not oppose, the Commission’s proposal, the LIBE Rapporteur instead suggests making 30 days the standard length of all voluntary departure periods. As regards the mandatory denial of a voluntary departure period, the Council largely follows this, but proposes to keep denial optional in the case of manifestly unfounded applications (while adding to this also inadmissible cases). The LIBE Rapporteur, on the other hand, advocates scrapping all grounds for denial apart from the presence of a “genuine and present” risk to public security or national security, which would at any rate be optional. The Council’s position also modifies some of the criteria for assessing a risk of absconding, including some of the problematic ones discussed above, whereas the LIBE Rapporteur seeks the deletion of the entire list of criteria, citing reasons that overlap with a number of the points discussed above. In light of serious concerns raised by various actors, the current Commission may also have become more open to suggesting compromise proposals during the trilogue that better secure the priority of voluntary return.

In this way, much remains to be discussed and therefore much to be gained in retaining the hard-won principle of priority of voluntary return as the centrepiece, rather than an afterthought, of an effective and fundamental rights-compliant EU return procedure.

Barnard & Peers: chapter 26

JHA4: chapter I:7

Photo credit: Another Airplane! via Wikimedia commons







Friday, 21 August 2020

Analysis of the United Kingdom’s Proposal for a UK-EU Readmission Agreement

 


Ben Hulme, PhD Warwick University

Among the collection of draft texts for the future UK/EU relationship released by the UK government in May 2020, one which has received little attention thus far has been the draft UK-EU Readmission Agreement. Readmission is the process by which an individual who did not fulfil, or no longer fulfils, the requirements for entry, presence or residence in a state, is returned to their state of origin or, in certain circumstances, to a third country.          

Although it is accepted customary international law that a state accepts the return of its own nationals, no such obligation exists towards those of a third country or who are stateless. Instead, the EU has sought to conclude readmission agreements which contain these additional reciprocal obligations, which is a contrast from the approach of many of its Member States who do not seek to include these additional obligations in their own bilateral agreements. For the UK, the only readmission agreement with provisions on third country nationals, but not stateless persons, is with Albania.

The readmission process under an agreement involves a state (the Requesting State) submitting a readmission application to the other state (the Requested State) to readmit either their own national, a third country national or a stateless person once their identity, nationality, presence or residence in the Requested State has been established. These criteria are normally satisfied by reference to an agreed list of common documents which can be submitted as evidence.

The increased media attention towards recent Channel crossings have raised the question of the UK’s options for future cooperation with the EU, in the event that some form of continuation of the Dublin Regulation is not negotiated and indeed, thus far we have seen little if no engagement from the EU on this. While a readmission agreement could form part of the solution (discussed here), its objectives are not the same as the Dublin Regulation. The Regulation establishes the criteria and mechanism to determine which EU Member State is responsible for an application for international protection. In contrast, and controversially, a readmission agreement does not distinguish between those individuals seeking international protection and those that are not. The Regulation is also solely concerned with third country nationals and stateless persons, whereas readmission agreements also include a state’s own nationals.  

The UK’s proposal cannot, in many respects, be viewed as a ‘standard’ readmission agreement. It represents a departure from the UK’s previous readmission policy, which, outside of its participation in 14 EU agreements (the status of which have not been confirmed post-transition period), has relied primarily on memoranda of understanding with third countries, supplemented by a small number of bilateral readmission agreements (such as with Algeria and the Republic of Korea). It is also a departure from existing EU readmission agreements. Although the core of the readmission process itself is identical, the UK’s proposal departs in its content and interpretation on other important elements, with several new provisions and alterations on data protection, governance, interpretation, non-affection and direct effect.

Preamble and Definitions

It cannot go unnoticed that, in its current form, the preamble to the draft agreement would make it only the second agreement (following Azerbaijan) concluded by the EU with a Council of Europe member that does not include a reference to the European Convention on Human Rights.  

In Article 1, on definitions, the UK has departed from its previous bilateral agreements by including a definition section, and departs from EU agreements in defining additional terms such as “personal data” and “child”. The agreement uses the term “British Citizen” to mean a British Citizen or a UK national who has the right of abode in the UK. The definition of a “border region” as being an area extending inwards for a maximum of 20 km from an external border, seaport or international airport is congruent with existing EU agreements. The border region definition is relevant for the purposes of an accelerated readmission procedure. It is important to also note that, due to the Common Travel Area, this agreement would not apply to the Republic of Ireland and therefore does not apply to the Irish border.

It must be further noted that, due to Protocol No 22, Denmark would not participate in any future UK-EU Readmission Agreement. 

Scope

Article 2, on the scope of the Agreement, is a new provision and, under 2(2) contains a new restriction on the obligations towards third country nationals. The Agreement would not apply to those third country nationals who left the Requested State more than five years before the Requesting State’s authorities gained knowledge of the individual’s presence, unless it can be established through the agreed documentary evidence to be negotiated under Annex 3. This is a significant departure from the common EU approach of whether the individual held a valid visa or residence permit issued by the Requested State at the time of their entry into the Requesting State.   

Readmission of Own Nationals

Under Article 3 of the proposal, the UK is obliged to accept the return of three categories of persons who did not or no longer fulfil the requirements of entry, residence or presence in an EU Member State: (1) British citizens; (2) unmarried children of British citizens regardless of their nationality and (3) spouses of British citizens, who do not have British citizenship, but have a right to enter or remain in the UK. It is, however, possible for the latter two categories of persons to possess an independent right to residence in a Member State which would prevent their readmission. In the event of a non-British spouse, it is also open for the UK to demonstrate that the marriage is not recognised under its national legislation. These obligations are replicated for the EU Member States and their nationals under Article 5 of the Agreement.

However, there is no obligation on the UK or Member States to readmit individuals who have renounced, lost or been deprived of their British/Member State citizenship since entering a Member State/UK. This is, however, an obligation under Article 1(2) of the UK-Korea Agreement of 2011 and indeed in most EU agreements (except Pakistan).   

If the readmission application is accepted, within three working days the British/Member State citizen concerned is to be issued with a valid travel document with a validity period of three months. What is most interesting in respect of the issuing of travel documents is that, if the document is not issued, or the return is not fulfilled within the period of validity of the document, the parties will accept the response to the application as the valid travel document.  

Readmission of Third Country Nationals and Stateless Persons

The UK, in Article 4, and the EU, under Article 6, commit to readmitting third country nationals and stateless persons who do not or no longer fulfil the requirements for entry, presence or residence in the other party. This is dependent on it being established that, at the time of the readmission application, the individual held a valid visa or residence permit in the Requested State. Otherwise, the individual must have illegally and directly entered the territory of the UK/Member State after having stayed or transited through the territory of the Requested State. This obligation is subject to three instances where it does not apply: (1) the individual had only ever been in airside transit in the Requested State; (2) the Requesting State had issued the individual with a valid visa or residence permit, unless they had been issued with a visa or residence permit of longer duration by the Requested State or (3) the individual has visa free access to the Requesting State.

It is common practice in EU readmission agreements for the entry into force of obligations on third country national and stateless persons to be delayed, often for two or three years, following own nationals and is subject to negotiation. This delay can be reduced or removed after the conclusion of an agreement through a decision of the Joint Readmission Committee (as was the case with Turkey).

The travel documents, validity and processes, are broadly the same for third country nationals, stateless persons and own nationals. However, although the parties will accept the response to the readmission application as a valid travel document for their own nationals, this is not the case for third country nationals and stateless persons, with the UK requiring the standard EU expulsion travel document. For Member States, there are two considerations. First, under Article 6(4) and (5), if a response is not received from the UK within the time limit, or the travel document’s validity expires, the standard UK travel document for expulsion purposes is to be accepted. The response to the readmission application is not accepted as a travel document. Second, under 6(3), if two or more Member States have issued a visa or residence permit to the individual, they are to be readmitted to the Member State that issued it with the longer period of validity or most recent expiry date. If such documents do not apply, the Member State from which they last exited is responsible under Article 6.  

These obligations are effectively a copy and paste exercise from previous EU readmission agreements.

Readmission Applications and Procedure

One significant absence from the principles listed under Article 7 of the Agreement is reference to an accelerated procedure. Instead, Article 19(1)(d) provides for the future negotiation between the UK and a Member State for an accelerated procedure, which typically reduces the amount of time after their apprehension that a Contracting Party may submit a readmission application. Of course, this proposal is the basis for a negotiation submitted by the UK, but the absence of an accelerated procedure in the text is curious considering that the UK government also represents the interests of British Overseas Territories such as Gibraltar and the Sovereign Base Areas in Cyprus, which share external borders with Spain and Cyprus respectively.  This links back to the wider issue in the negotiations as to the territorial application of the future relationship agreements and is an issue which would also have to be determined for the purposes of a UK-EU Readmission Agreement.   

The readmission application itself, under Article 8, contains details about the individual, unmarried children and/or spouse being readmitted, evidence of nationality, a photograph, any health requirements, protection or security information and, for third country nationals/stateless persons, evidence of their qualification for readmission. What has been added in Article 8(1)(2) is the requirement for evidence of connection or transit through the Requested State. This separate provision is unnecessary as it would already be satisfied under the preceding requirements. The application form would be subject to agreement and attached as an annex to the Agreement.

The provisions on the transfer itself, the method of transport (Article 12) and readmission in error (Article 13) are the same as those found in other EU readmission agreements.

Evidence and Time Limits

Articles 9 and 10 of the Agreement govern the evidential requirements in order to establish nationality and responsibility. Readmission agreements provide agreed lists of acceptable forms of evidence in the annexes, which are subject to negotiation. Therefore, in the proposal these have been left blank. In the absence of any agreed form of evidence for own nationals, provision is made under Article 9(3) for the Requested State to conduct an interview of the individual. For third country nationals and stateless persons, there is no provision for an interview but instead the lack of a visa or residence permit in any of their travel documents is enough evidence to establish that they entered or are present/resident unlawfully.

Article 11, on the relevant time limits for the application to be made after the authorities became aware of the individual (up to six months), the response to the readmission application (maximum 25 calendar days) and transfer time (up to three months after acceptance) are the same as those found under Article 11 of the EU-Turkey Readmission Agreement. However, these time limits differ between agreements, for example, the EU’s most recent agreement, with Belarus, requires a response to a readmission application to be given within 10 calendar days. On the other hand, the UK-Korea Agreement requires a response to an application within 20 working days under Article 3(4).    

Transit, Transport and Costs

The provisions on transit (Articles 14 and 15) concern the possibility that a third country national or stateless person may transit through the Requested State on their journey to another state of destination. As with other EU agreements, under Article 14(1), the Parties endeavour to reduce this procedure to instances where direct travel to the destination state is not possible. This requires an application for transit from the Requesting State to the Requested State as laid down under Article 15. While the particulars of the application are effectively the same as those contained in EU readmission agreements, one alteration which has been made can be found in 15(1)(b) on ‘the particulars of the person concerned’. Typically, examples of these are listed as: ‘given name, surname, maiden name, other names used/by which known or aliases, date of birth, sex and – where possible – place of birth, nationality, language, type and number of travel documents’. Instead, the UK’s proposal has removed these examples and classified it as an implementation issue to be determined by the Joint Readmission Committee. It is unclear why this is the case, why would this not be an issue for negotiation prior to the conclusion of the Agreement, rather than an issue to be dealt with later once the Committee is established? Especially considering that this is a standard provision in every EU readmission agreement.

A transit application may be rejected under Article 14(4) on the grounds that: (1) they face the real risk of torture, inhuman or degrading treatment or punishment, the death penalty or persecution on the grounds of the characteristics set out in the 1951 Refugee Convention in another transit state or destination state; (2) they will be subject to criminal sanctions in the Requested State or a transit state and (3) for reasons of public order, health, security or other national interests of the Requested State. 

As in other agreements, the costs of the readmission are borne by the Requesting State up to either the border crossing point at the external border or, if a transit operation, up to the external border of the destination state.

Data Protection

Here, the draft agreement falls far short in precision and detail in comparison to other EU and UK agreements. Article 17 states that:

‘The communication of personal data shall only take place if such communication is necessary for the implementation of this Agreement by the competent authorities of a Member State or the United Kingdom, as the case may be. The processing of personal data by a competent authority of the United Kingdom shall be subject to the domestic laws of the United Kingdom. Processing of personal data by a competent authority of a Member State shall be subject to applicable Union law and to the national legislation of that Member State’.

In effect, the UK is seeking for the governance of data under the Agreement to be subject entirely to the domestic law of the parties. The purpose of providing specific detail in a readmission agreement on data protection is for the clauses to be in addition to national rules, which ensures some form of common standard between parties (see for example, Article 11 of the UK-Albania Agreement or Article 17 of the EU-Turkey Agreement). Although reference is made to the communication and processing of personal data, there is no reference in the proposal to its collection.

Although the definition of personal data, provided in Article 1 of the Agreement, corresponds to Article 4(1) of the General Data Protection Regulation, EU readmission agreements specify the type of personal data which can be transferred between parties. These are: (1) the individual’s particulars such as date and place of birth, sex, given name and surname, nationality etc; (2) passport, identity card or driving licence; (3) stop-overs and itineraries and; (4) any other information necessary for identification. In its current form, Article 17 does not specify the type of personal data which can be transferred.

The UK’s approach prompts three further observations. First, what is the process to be followed if the data transferred is inaccurate or incorrect? Second, EU agreements allow for the party which has communicated the personal data to request, from the receiving party, information as to how that data has been used and any results from its use. Again, such a clause is missing from the UK’s proposal, yet it has been consistent EU and UK policy to include such a provision. The final observation is, in which form shall the personal data be stored? EU agreements require that any personal data be held in a form which allows for identification only for as long as is necessary.

Non-Affection Clause

Absent from the UK’s proposal is a non-affection clause, and here we see a difference in approach between the parties. Such clauses are common in EU agreements and have been included to varying degrees of detail in UK agreements.

Such non-affection or ‘without prejudice’ (Article 17 EU-Cape Verde Agreement) clauses state that the agreement does not prejudice those obligations, responsibilities or rights provided for by international law. The precise details in these clauses differ from agreement to agreement. EU agreements with states such as Turkey (Article 18), Russia (Article 18) and Bosnia and Herzegovina (Article 17) contain lists of relevant international instruments such as the European Convention on Human Rights (ECHR), 1951 Refugee Convention and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). On the other hand, the EU-Pakistan Agreement, under Article 15, does not specify any applicable international instruments.  

The absence of a non-affection clause leaves the only references to international human rights instruments in the preamble, which cites the 1951 Refugee Convention and the Universal Declaration of Human Rights. This means that there is a complete absence of any reference to the ECHR and its rights in the UK’s proposal. Although reference to the ECHR is missing from the preamble to the EU-Azerbaijan Agreement, reference is still made to it in that agreement under the fundamental principles in Article 2. This absence from the draft cannot be separated from the wider talks in the negotiations on the UK’s future compliance with the ECHR. This is because non-affection clauses do not create new rights or obligations, instead, they address a scenario in which a conflict arises between the agreement and a party’s existing international obligations.

Indeed, the UK previously recognised this in its agreements with Albania (Article 21) and the Republic of Korea (Article 10). In the UK-Switzerland Readmission Agreement, the non-affection clause did make express reference to the ECHR (Article 22(c)) (this agreement, however, did not enter into force).

Governance, Interpretation and Dispute Resolution

As with other EU readmission agreements, Article 18 proposes the establishment of a Joint Readmission Committee, with the role of overseeing the application and implementation of the Agreement. On this Committee, the UK would be represented by its officials, and the EU by the Commission and assisted by Member State experts. The first four functions listed in the provision are the standard purposes listed in all EU readmission agreements (monitor its application, decide on implementing arrangements, exchange information on implementing protocols and recommend amendments to the agreement and annexes), however, the fifth function is new. The Committee would also fulfil a dispute resolution role concerning the interpretation and application of the Agreement in accordance with Article 24.

Article 24, on dispute resolution, proposes that disputes would be resolved by a decision of the Committee, which would be binding on the parties. This must be read in conjunction with another new provision, under Article 23, on the interpretation of the Agreement in accordance with ‘the customary rules of public international law, including those in the Vienna Convention on the Law of Treaties’. This form of wording closely matches that which can be found in EU Association Agreements, absent the use of the term ‘codified’ (‘including those codified in the Vienna Convention’ see Article 320 EU-Ukraine Association Agreement or Article 401 EU-Moldova Association Agreement). However, where it has been included in EU Association Agreements, the application of the Vienna Convention has been limited to issues of trade.     

It must be recalled that, in the absence of an express provision, the Vienna Convention itself is not in its entirety binding on the EU, and the Court of Justice (CJEU) has recognised only a limited number of provisions of the Convention as being applicable to EU international agreements ‘in so far as those rules are an expression of general international customary law’ (para 41 of Brita. See also Racke, Jany and Others and Western Sahara Campaign UK). This is despite increased engagement with the Convention in cases such as Wightman. It would be open for the EU to agree, for this Agreement alone, to bind itself to the Vienna Convention for the purposes of interpretation.                

While on the one hand these provisions significantly extend the competence of the Committee beyond any existing Joint Readmission Committee, on the other hand, the proposal removes the ability of the Committee to establish its own rules of procedure under Article 17(5). Instead, these rules are to be set out in Annex 7 to the Agreement.   

Several observations can be made here. The first is that the language used in Article 17(1) has omitted the standard reference to ‘shall provide each other with mutual assistance in the application and interpretation of this Agreement’. This form of words can also be found under Article 17(1) of the UK-Albania Readmission Agreement. While this does not have legal significance, its absence does possess a symbolic value.   

Second, what disputes are foreseen by the UK to warrant the inclusion of unique provisions on the interpretation of the Agreement and dispute settlement, with specific reference to the Vienna Convention? In its own readmission agreements, the UK has relied on a process of consultation outside of the governing mechanism of the agreement to resolve disputes. This can be observed in Article 9 with the Republic of Korea. With Algeria, Article 7 provides for consultations, not binding decisions by the Committee of Experts, in three situations: (a) where one party considers the number of individuals being returned without confirmed nationality as too high; (b) where one party considers the time taken to issue the necessary travel documents as too long and (c) whenever it is considered necessary.      

Third, what would happen if the Joint Readmission Committee is unable to resolve a dispute? How would it be escalated? Again, we must take account of the wider discussions on the governance of future UK-EU relations. Joint Readmission Committees are not designed or constituted for dispute resolution. A parallel to the proposed provision can instead be found in EU Association Agreements and the role of the Association Councils. However, these Councils are constituted of government ministers and members of the Council of the European Union and Commission officials. Association Agreements also contain much more detailed provisions on dispute resolution, as well as measures that can be taken where obligations are unfulfilled.     

Direct Effect

This provision (Article 22) is designed to reduce the ability of individuals to rely on aspects of the Agreement before the domestic courts. If accepted in its current form, this Agreement would be the first EU readmission agreement to break the silence as to whether they are capable of having direct effect. Thus far, the courts have not had to rule on this issue, indeed, they have rarely had to engage with readmission obligations or arrangements at all (see Commission v Council – discussed here – and NF, NG and NM v European Council before the General Court and the Court of Justice). This absence means that we cannot look to existing EU readmission agreements to determine whether the UK proposal would, absent the clause, provide for direct effect (as the CJEU did in Gattoussi when relying on El-Yassini at para 26 and 27).

However, where the EU has sought to exclude direct effect, it has expressly done so either in the text of the agreement or in the Council decision authorising its signature (for example, Council Decision (EU) 2014/492 on the EU-Moldova Association Agreement). Otherwise, it has been for the CJEU to decide on the direct effect of international agreements with non-Member States, using the criteria laid down in Kupferberg and Demirel, and further developed in subsequent cases (such as in Kziber, Gloszczuk and Simutenkov).          

Article 22(1) states that ‘nothing in this Agreement shall be construed as conferring rights or imposing obligations on persons nor as permitting this Agreement to be directly invoked in the domestic legal systems of the Parties’. This is followed in Section 2 by ‘a Party shall not provide for a right of action under its national law against the other Party on the ground that a measure of the other Party is inconsistent with this Agreement’. This raises the question of which provision is foreseen as potentially being capable of direct effect if the agreement is indeed capable of it? After all, in the absence of an express provision ruling out direct effect or the ability of individuals to rely on the Agreement before the domestic courts, it would be open to each party to decide whether it does so within their own legal systems. However, the second section also seeks to prevent the ability of individuals to rely on the Agreement before the domestic courts of one party against actions of the other party, thereby further limiting the scope of any potential action within the jurisdiction of the other party. Even if the Agreement was capable of direct effect, the courts would still have to consider whether the specific article being relied on produced direct effect.        

Conclusions

The UK’s proposal for a UK-EU Readmission Agreement is, in many areas, a significant break from the readmission policies of both parties. Although procedurally it is largely the same as existing readmission agreements, the areas in which it has deviated cannot be overlooked. It is the first agreement to place a limitation on the obligation to readmit third country nationals based on the length of time passed between leaving the Requested State and the Requesting State authorities gaining knowledge of them. It is also the first to include provisions in the text on the interpretation of the agreement, direct effect and dispute settlement. There are aspects which are missing significant details, such as on data protection, or areas which are entirely absent, such as non-affection. In doing so, this proposal removes many aspects of common ground between the parties built up through the UK’s participation in EU readmission agreements as well as its own bilateral agreements.                 

Barnard & Peers: chapter 26, chapter 27

JHA4: chapter I:7

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