Block exclusion on blood donation by gay and bisexual men: a disappointing CJEU ruling

 

Alina Tryfonidou, Associate Professor in EU Law, School of Law, University of Reading

In a much awaited judgment delivered earlier this week in Case C-528/13 Léger, the Court of Justice ruled that permanent Member State bans on the donation of blood by gay and bisexual men which are based merely on the fact that they had had sexual relations with another man, may, in certain circumstances, be justified by the need to ensure a high level of health protection. Below, I will explain why this is a disappointing ruling which may, fairly, subject the Court to accusations of, at best, not going far enough in the protection of LGB rights and, at worst, deep-seated homophobia. Before exploring the reasons behind these accusations, nonetheless, I shall summarise the legal and factual background to the case and the main parts of the Court’s judgment.

The Law

In order to minimise any risk of transmission of infectious diseases as a result of blood transfusion, Directive 2002/98 (‘the 2002 Directive’) sets standards of quality and safety for the collection, testing, processing, storage and distribution of human blood and blood components. The above instrument is implemented by Directive 2004/33 (‘the 2004 Directive’), which, in its Annex III, sets out the criteria for excluding certain categories of persons from blood donations: Point 2.1 of the Annex provides that a permanent ban can be imposed on, inter alia, ‘persons whose sexual behaviour puts them at high risk of acquiring severe infectious diseases that can be transmitted by blood’ (‘the 2.1 category’), whilst Point 2.2.2 of the same Annex, provides that a temporary ban may be imposed on ‘persons whose behaviour or activity places them at risk of acquiring infectious diseases that may be transmitted by blood’ (‘the 2.2.2. category’). The contested French measure – L’Arrêté du 12 Janvier 2009 fixant les critères de selection des donneurs de sang (‘the Decree’) – which was adopted in 2009 in implementation of the 2004 Directive, and which, as its name suggests, sets the criteria for selection of blood donors in France – provides a permanent contraindication to blood donation (only) for a ‘man who has had sexual relations with another man’; other categories of persons, such as persons who have had unprotected sex with a casual partner or who have had multiple partners in the last four months, are only temporarily banned from giving blood.

The Facts

The judgment under examination was a response to a request for a preliminary ruling made to the ECJ from the Tribunal administrative, Strasbourg. The question referred arose in proceedings brought by Mr Geoffrey Léger against the French Blood Agency and the French Minister for Social Affairs, Health and Women’s Rights, challenging the refusal (which was based on the impugned Decree) of the healthcare professional responsible for donations at the French Blood Agency, to accept Mr Léger’s blood donation, on the sole ground that he had had sexual relations with another man. The question that emerged was whether the permanent ban on blood donation by a man who had had sexual relations with another man laid down by the Decree was consistent with the 2004 Directive. In other words, can the fact that a man has sexual relations with another man in itself amount to a valid reason for permanently excluding him from being a blood donor?

The Judgment

The Court began its judgment by noting that permanent deferral from blood donation under the 2004 Directive requires the existence of a greater risk (‘high risk’) of acquiring severe infectious diseases that may be transmitted by blood than that for temporary deferral. The Court, then, explained, that the main question is whether a man who has had sexual relations with another man satisfies the requirement of a ‘high risk’ which justifies the imposition of a permanent ban on blood donation.

The Court explained that this question must be answered by the referring court, which must take into account for this purpose current medical, scientific, and epidemiological knowledge about France. In answering that question, the national court must ensure that the way that it interprets the 2004 Directive is not contrary to the fundamental human rights protected in the EU legal order and, in particular, that it does not breach the prohibition of discrimination on the basis of sexual orientation which is provided in Article 21 of the EU Charter of Fundamental Rights (‘the Charter’). The Court pointed out that the Decree may discriminate on grounds of sexual orientation contrary to the above provision, as it ‘determines the deferral from blood donation on the basis to [sic] the homosexuality of the male donors who, on account of the fact that they have had homosexual sexual relations, are treated less favourably than male heterosexual persons.’ The Court then proceeded to note that this may, nonetheless, be justified under Article 52(1) of the Charter. It noted that although the permanent contraindication provided for in the contested Decree contributes to minimising the risk of transmitting an infectious disease to recipients of blood transfusion and, thus, to the general objective of ensuring a high level of health protection, this needs to be proportionate in order to be justified. In particular it noted that, firstly, the referring court must verify whether scientific or technical progress in the field of science or health (which enables the detection of HIV) now allows a high level of health protection for recipients to be ensured in situations involving men who have had sexual relations with other men and, secondly, even if this cannot be verified, it stressed that ‘a permanent deferral from blood donation for the whole group of men who have had sexual relations with other men is proportionate only if there are no less onerous methods of ensuring a high level of health protection for recipients.’ In particular, as regards the latter, the ECJ pointed out that the referring court must determine whether the questionnaire and individual interview with a medical professional (which are mentioned in the 2004 Directive as methods which enable the determination of the level of risk of individual blood donors) may, in fact, enable medical staff to identify the type of behaviour presenting a risk for the health of recipients and in this way impose a more limited exclusion, which does not cover the entire group of men who have had sexual relations with a man.

Comments

This case comes at a time when a number of countries – both within and outside the EU – have relaxed, or consider relaxing, their blanket bans on blood donation by gay and bisexual men. In fact, France itself has, in recent months, begun to examine whether it should relax the ban at issue in this case. Bans on blood donation by gay and bisexual men were introduced back in the 1980s, in response to the AIDS epidemic, as it was widely considered that men having sex with men were more likely to contract HIV, which is the virus that causes AIDS. It is worth pointing out that recent studies have shown no change in the safety of blood supply in countries which have relaxed restrictions on blood donations by gay and bisexual men.

At first glance, one may view the judgment in Léger favourably, in that the Court does admit that blood donation bans which are purely based on the fact that a man has had sex with another man are discriminatory on the ground of sexual orientation and, thus, are contrary to Article 21 of the Charter, unless justified. In fact, the Court not only provides detailed guidance to the national court for determining whether such bans are justified but, also, prompts the latter to apply a strict proportionality test, by examining whether it is possible to achieve the same aim (i.e. a high level of health protection) by adopting less restrictive measures, this demonstrating that a finding that a ban is considered by the national authorities (merely) reasonable does not suffice for justifying it. Accordingly, the judgment makes it clear that Member States no longer have a carte blanche when determining whether – and to what extent – they will ban or restrict blood donations by gay and bisexual men but they must ensure that they comply with EU law and, in particular, with EU fundamental human rights and the principle of proportionality.

Nonetheless, a closer look at the judgment reveals that there is a fundamental flaw in the Court’s reasoning and this is that it perpetuates stereotypical assumptions about the sexual behaviour of gay and bisexual men, which contribute to the continuing stigmatisation of this segment of the EU society. In particular, by holding that in certain circumstances permanent bans on blood donation which are imposed automatically when a man declares that he is gay or bisexual are permitted under EU law, the Court implies that it is acceptable to use a person’s sexual orientation for the purpose of making assumptions about his sexual behaviour, in this context the assumption being that all gay and bisexual men engage in promiscuous, unprotected, sex. Moreover, maintaining a complete ban on blood donations by all gay and bisexual men appears to entail a significant contradiction when this is done in Member States like the Netherlands or Belgium, which have been pioneers in permitting same-sex marriage. Isn’t it contradictory to recognise that some gay and bisexual men may wish to marry their long term partner and have a stable, committed, and monogamous relationship with him, whilst at the same time a permanent ban on blood donations by all gay and bisexual men is maintained, because it is assumed that they are (all) engaging in promiscuous sexual behaviour which places them at a high risk of contracting serious disease? Accordingly, instead of reinforcing stereotypes which lead to inaccurate assumptions about a certain part of the population (gay and bisexual men), the Court should come to terms with reality and recognise that there is a wide range of sexual behaviours among men and women, and among LGB and heterosexual individuals and, thus, the sexual behaviour of an individual depends neither on his or her sex nor on his or her sexual orientation. This means that the sexual orientation of a person should not be treated as the factor that defines his or her sexual behaviour and, hence, it is inappropriate to consider that a person engages in sexually risky behaviour only because of their sex or sexual orientation.

Another problematic aspect of the judgment is that, unlike the Advocate General, the Court does not appear concerned at all by the fact that the contested measure draws a (completely unjustifiable) distinction between gay and bisexual men, on the one hand, and other segments of the population which engage in behaviour which puts them at a high risk of contracting a serious disease, on the other. More specifically, the contested French Decree appears to be singling out gay and bisexual men as the only category of persons that deserves to be permanently excluded from blood donations. Sex workers, heterosexual persons who have unprotected sex with multiple partners, and intravenous drug users are, clearly, categories of persons who are in high risk of contracting a serious disease that can be transmitted via blood transfusion. Why, then, is it acceptable that the French Decree does not permanently exclude these categories of persons from blood donation? Doesn’t this fact, in itself, demonstrate that the permanent ban imposed on gay and bisexual men is unjustifiable and disproportionate? Moreover, given that the 2004 Directive and the French Decree require blood donors to answer questions about, inter alia, their sex life, and to have an interview with medical professionals, the latter are able to single out individuals (rather than categories of individuals) who in actual fact (rather than as a result of a mere assumption) engage in behaviour that places them at a high risk of contracting a serious disease. This is another factor that demonstrates that maintaining a blanket and permanent ban on blood donation by gay and bisexual man is disproportionate in all circumstances and cannot be considered justified in certain contexts (which is what the Court appears to suggest in its judgment).

Accordingly, and agreeing with the Advocate General, the Court should rule that ‘the mere fact that a man has had or has sexual relations with another man does not, in and of itself, constitute a sexual behaviour placing him at a high risk of acquiring severe infectious diseases which can be transmitted by blood’. The correct approach would, hence, be for the Court to respond in this case by saying that Member States should under no circumstances be permitted to impose a permanent ban on blood donation on men simply and merely because they are gay or bisexual. The sexual orientation of an individual can under no circumstances be considered a sufficient reason for including him or her within a category of persons who engage in risky sexual behaviour; rather, the inclusion in such a category should be strictly dependent on the actual behaviour of the individual. This means that Member States should be required to provide in their laws that medical professionals should, in all instances, use the interviews and questionnaires which are, already, provided in the 2004 Directive, as a means to identify persons who should either permanently or temporarily be prevented from donating blood.

Barnard & Peers: chapter 20, chapter 21 

Fact-checking Nigel Farage: Will the EU’s asylum policies admit half a million terrorists?

Steve Peers

Yesterday, Nigel Farage, the leader of the UK Independence Party, argued that the EU’s response to the migrant deaths crisis ran the risk of admitting half a million terrorists on to EU soil. He based this claim on the threat of the ‘Islamic State’ (Daesh) terrorists to send such killers to the EU via means of smuggling routes, and demanded that David Cameron veto the EU plans.

Do these claims make sense? Not in the slightest. First of all, the EU policy, as I discussed last week, is essentially to reaffirm the status quo.  The current limited maritime surveillance missions will be expanded, although it is not clear if they will amount to fully-fledged rescue missions. This probably means that more people will reach the EU, but this will only be for the reason that fewer of them will drown en route.

Once in the EU, they will be able to make claims for asylum – but that is no different to the current law. The EU’s plan does not involve any changes to EU asylum legislation; it simply calls on Member States to apply those laws.  The EU did commit to some form of direct resettlement of refugees from third countries – but EU leaders could not even agree on the tiny number of 5,000 refugees to be settled next year.

Farage would prefer a policy of returning people to the countries they left. In fact, asylum-seekers can already be returned to their countries of origin or transit, if it is clear when examining their application that those countries are safe. But in accordance with the UN (Geneva) Refugee Convention – which UKIP purports to support – they cannot be returned to an unsafe country. Libya, for instance, is clearly unsafe: there are widespread whippings, beatings, electric shocks and hangings of migrants. In any event, asylum-seekers who prove to be terrorists must be denied refugee status or other forms of protection status, as the CJEU has confirmed.

Farage demands that David Cameron veto the EU’s plans, but that simply isn’t possible, because the UK has an opt-out from EU asylum and immigration law. We can choose not to participate, and indeed the UK has already chosen not to participate in any of the second phase EU asylum measures, except for those which transfer asylum-seekers from the UK to other Member States. We can choose not to participate in any future measures too – although as noted already, the EU is not even planning any new asylum laws in response to the deaths. Since the UK has an opt-out, it does not have a veto. But in fact, no Member State has a veto on EU asylum policy. Most EU immigration and asylum law has in fact been subject to qualified majority voting since 2005. (Laws on legal migration were subject to unanimous voting until 2009; but the EU’s plan does not address legal migration issues).

As regards border control operations in particular, the UK doesn’t participate fully in the EU’s border control agency, Frontex. In fact, according to the EU Court of Justice, legally we can’t participate in Frontex, since we don’t participate in the full Schengen system of abolishing internal border controls. Instead we have an informal arrangement, for instance supplying some hardware to assist with the expanded surveillance operations. But even that sort of informal arrangement is under challenge in a case pending before the CJEU.

In some ways, Farage’s own policy runs its own risks. He has argued that Christians in particular should be admitted as refugees into the EU. As I have pointed out, this again violates the Geneva Convention that UKIP purport to support, since that Convention requires non-discriminatory application on grounds of religion, and it would also be unfeasible to distinguish between Christians and Muslims during rescue at sea. But if Christians are being resettled directly from areas afflicted by Daesh, the UKIP policy would provide the perfect opportunity for ISIS fighters to pretend to be Christian as a way to ensure entry into the EU.

As an assessment of terrorist methodology, Farage’s claims are also suspect. The bulk of Daesh atrocities have not been carried out in the EU, but in Syria and Iraq, as well as by affiliated groups in Libya and Nigeria.  Most of the people who have been linked to Daesh in Europe have been EU citizens who travelled to parts of the Middle East to participate in atrocities. Any migrants who were rescued from boats or who were resettled directly from conflict areas would presumably be disarmed of any weapons they were carrying en route. Of course, they might obtain weapons once they reached the EU; but since Farage is an outspoken critic of gun control, he is part of the problem, not of the solution, to that issue. As for the figure of half a million Daesh fighters coming to the EU, that's 20 or 30 times the CIA's estimate of the total number of all Daesh fighters.

Finally, Farage argues that the EU has cynically used the migrant deaths crisis to develop a comprehensive immigration and asylum policy. If only it had: in fact, the EU’s response is largely marginal and ineffectual. Indeed, Farage is throwing some huge stones inside this glass house. It is Farage who is trying to ‘weaponise’ the tragic deaths of hundreds of people, taking this opportunity to make an inaccurate and incoherent rant in the midst of an election campaign.

Don’t Rock the Boat: EU leaders do as little as possible to address the migrant crisis

 

Steve Peers

 

Yesterday the EU leaders, in the European Council, adopted a policy for addressing the recent crisis of large-scale migrant death tolls crossing the Mediterranean. It builds upon the recent 10-point plan adopted by ministers (discussed here), but builds upon it in some respects. There were also some interesting last-minute changes to the earlier draft of the text (all of which are shown in the annex below), indicating leaders’ real priorities.

 

 

Detailed comments

 

At first sight, the leaders’ statement shows more compassion than the 10-point plan, referring to the huge loss of life as a ‘tragedy’ and stating an immediate priority to ‘prevent more people from dying at sea’. To this end, there is a specific commitment to triple the funds for ‘search and rescue’ as regards existing EU operations. However, this is only ‘within the mandate of Frontex’ – and the head of the EU border agency has stated that this agency does not really have a search and rescue role.

 

It should be noted that since these operations are coordinated by Frontex, detailed rules of EU law will apply (discussed here) will apply. These rules do allow, in some cases, for returns of migrants directly from their rescue to non-EU countries – as long as those countries are safe. It is unlikely that in the current situation, Libya would qualify as safe.

 

The destruction of traffickers’ vessels ‘before they are used by traffickers’ seems to suggest some Minority Report style precognisance of the future use of the boats, considering that traffickers do not paint logos on the side of their boats like ferries or shipping companies. This is also qualified by a reference to compliance with international law. It may be questioned whether this action will legally be a foreign policy operation (as the leaders assume), given the approach to EU law taken in a recent CJEU opinion concerning the EU’s anti-pirates operation (discussed here).

 

As compared to the 10-point plan, there is a reference to Interception of communications, and a very brief reference to the root causes of the problem (conflict in countries of origin, as well as Libya). The EU leaders took out a reference to stopping migrants making it to the Mediterranean shores, but it’s obvious that this is the main intention of stepping up cooperation with sub-Saharan countries.

 

There’s an added stress on readmission treaties, including with countries of transit; this refers implicitly to EU readmission treaties with North African states (not Libya) currently under negotiation. There are also two added references to the right to asylum and EU asylum law, confirming that the EU leaders do not intend to simply return migrants without considering their claims. Some press reports had erroneously suggested an intention to return many thousands of migrants without considering claims, but if migrants make it to EU waters or land, it would be illegal to return them without examining their claims under EU law. Migrants can be returned to countries of origin or transit if their asylum claims are unfounded, as long as those countries are safe. Again, returning migrants to Libya would, under current circumstances, breach EU and human rights law as long as that country does not appear safe.

 

As compared to the 10-point plan, it appears that the intention is not to fingerprint all migrants, but only those applying for asylum; this simply re-iterates long-standing EU law. More generally, the plan says little about safe passage, removing the original (and puny) target number of 5,000 resettlement places, and not referring to other forms of safe passage instead. (While it would be difficult to issue humanitarian visas in Libya, it would be possible to offer this option - discussed further here - in other States). Equally, there is little practical solidarity with frontline states; other Member States offer cash and help with processing and return, but weakened any significant commitment to relocate people from those frontline States.

 

There is an immediate commitment to issue a ‘roadmap’ next week, pre-empting the Commission’s agenda-setting role (its strategy paper is due in May). However, the role of the European Parliament may still prove significant, since it must approve any funding decisions or changes in legislation.

 

Conclusions

 

Overall, the new commitment to search and rescue is welcome, although it is qualified in light of Frontex’s limited powers.  The desire to address root causes is good but seems half-hearted, and this is easier said than done. A more ambitious strategy regarding the processing of asylum claims in non-EU transit states is probably necessary in the medium term, but neither the EU leaders nor asylum NGOs want to swallow this bitter pill for the time being. The destruction of traffickers’ boats is subject to legal and practical constraints, and will be almost literally a drop in the ocean. The summit result is frankly pathetic as regards safe passage of migrants, ensuring that they avoid the risk of the crossing altogether, and it is marginal as regards assistance to frontline Member States.

 

On the whole, it seems that the leaders want to do as little as possible to change the current approach to dealing with the crisis. Similar to their method of dealing with the euro crisis, this looks like a short-term patch-up that offers less than first appears, which will probably have to be revisited soon.

 

 

Photo credit: Kenneth Roth

 

Barnard & Peers: chapter 26

 

 

Annex

 

Special meeting of the European Council, 23 April 2015 - statement

 

[note: changes from the earlier draft are noted by underling for additions of text, and strike-out for removals of text] 

 

1. The situation in the Mediterranean is a tragedy. The European Union will mobilise all efforts at its disposal to prevent further loss of life at sea and to tackle the root causes of the human emergency that we face, in cooperation with the countries of origin and transit. Our immediate priority is to prevent more people from dying at sea.

 

2. We have therefore decided to strengthen our presence at sea, to fight the traffickers, to prevent illegal migration flows and to reinforce internal solidarity and responsibility. Given that instability in Libya creates an ideal environment for the criminal activities of traffickers, we will actively support all UN-led efforts towards re-establishing government authority in Libya. We will also step up efforts to address conflict and instability as key push factors of migration, including in Syria.

 

3. We today commit to:

 

Strengthening our presence at sea

 

a) rapidly reinforce EU Operations Triton and Poseidon by at least doubling tripling the financial resources for this purpose in 2015 and 2016 and reinforcing the number of assets, thus allowing to increase the search and rescue possibilities within the mandate of FRONTEX. We welcome the commitments already made by Member States which will allow to reach this objective in the coming weeks;

 

Fighting traffickers in accordance with international law

 

b) disrupt trafficking networks, bring the perpetrators to justice and seize their assets, through swift action by Member State authorities in co-operation with EUROPOL, FRONTEX, the European Asylum Support Office (EASO) and EUROJUST, as well as through increased intelligence and police-cooperation with third countries;

 

c) undertake systematic efforts to identify, capture and destroy vessels before they are used by traffickers;

 

d) at the same time, the High Representative is invited to immediately begin preparations for a possible CSDP operation to this effect, in accordance with international law;

 

e) use EUROPOL to detect and request removal of internet content used by traffickers to attract migrants and refugees, in accordance with national constitutions;

 

Preventing illegal migration flows

 

f) increase support to Tunisia, Egypt, Sudan, Mali and Niger among others, to monitor and control the land borders and routes in order to prevent potential migrants from gaining access to Mediterranean shores, building on current CSDP operations in the region, as well as on regional cooperation frameworks (Rabat and Khartoum processes); step up dialogue with the African Union at all levels on all these issues;

 

g) reinforce our political cooperation with African partners at all levels in order to tackle the cause of illegal migration and combat the smuggling and trafficking of human beings. The EU will raise these issues with the African Union and the key countries concerned, with whom it will propose the holding of a summit in Malta in the coming months;

 

h) step up cooperation with Turkey in view of the situation in Syria and Iraq;

 

i) deploy European migration liaison officers in key countries to gather information on migratory flows, co-ordinate with national liaison officers, and co-operate directly with the local authorities;

 

j) work with regional partners in building capacity for maritime border management and search and rescue operations;

 

k) launch Regional Development and Protection programmes for North Africa and the Horn of Africa;

 

l) invite the Commission and the High Representative to mobilise all tools, including through development cooperation and the implementation of EU and national readmission agreements with third countries, to promote readmission of unauthorised economic migrants to countries of origin and transit, working closely with the International Organisation for Migration;

 

m) while respecting the right to seek asylum, set up a new return programme for the rapid return of illegal migrants from frontline Member States, coordinated by FRONTEX;

 

Reinforcing internal solidarity and responsibility

 

n) rapid and full transposition and effective implementation of the Common European Asylum System by all participating Member States, thereby ensuring common European standards under existing legislation;

 

o) increase emergency aid to frontline Member States and consider options for organising emergency relocation between all Member States on a voluntary basis;

 

p) deploy EASO teams in frontline Member States for joint processing of asylum applications, including registration and finger-printing;

 

q) set up a first voluntary pilot project on resettlement across the EU, offering at least 5,000 places to persons qualifying for protection.

 

4. The EU institutions and the Member States will work immediately on the full implementation of these orientations. The Presidency and the Commission will present next week a roadmap setting out work up to June.

 

5. The European Council looks forward to the Commission Communication on a European Agenda for Migration, in order to develop a more systemic and geographically comprehensive approach to migration. The European Council will remain seized of the situation and will closely monitor the implementation of these orientations. The Council and the Commission will report to the European Council in June.

The EU response to migrant deaths: protection and prevention – or policy laundering?

Steve Peers

On Monday, EU foreign and interior ministers adopted a ten-point plan in response to the recent huge death toll of migrants crossing the Mediterranean. There will be a summit on Thursday to examine the issue further, and then an EU Commission strategy proposed on May 13^th. But for now, I want to examine the initial plan.

Overall, this is a very disappointing document. It’s not only vague on crucial details but more importantly focusses less on the situation of the migrants (addressing the root causes which cause them to move, and protection from drowning and persecution) and more on border control and repression. One point in the plan constitutes a rather crass example of ‘policy laundering’ – attempting to use a crisis to shove through an essentially unrelated policy objective.

Let’s look at the ten points of the EU plan in turn, then examine the ‘Australian solution’ and the ‘Christians only’ approach which some have suggested. For alternative solutions to the problem, see the proposals of the UN Special Rapporteur on Migrants, the EU's Fundamental Rights Agency, Patrick Kingsley (in the Guardian), Nando Sigona, and myself.

Reinforce the Joint Operations in the Mediterranean, namely Triton and Poseidon, by increasing the financial resources and the number of assets. We will also extend their operational area, allowing us to intervene further, within the mandate of Frontex;

This is the only one of the ten measures related directly to search and rescue, although it’s not clear if this is actually intended to be a search and rescue mission. The mandate of ‘Frontex’ (the EU’s border control agency) concerns border control, not search and rescue as such. Indeed there is no mention of search and rescue here, or in the rest of the plan. Nor is there any express mention in the plan of the recent loss of life. There are no details of the extent of the increase in financial resources and assets, or the extent to which the operational area will increase.

A systematic effort to capture and destroy vessels used by the smugglers. The positive results obtained with the Atalanta operation should inspire us to similar operations against smugglers in the Mediterranean;

The ‘Atalanta’ operation concerns an EU military operation against pirates in the Indian Ocean. It’s clear from press briefings that the intention is to have another military operation regarding the smugglers. This will obviously entail significant costs and raises legal questions about the jurisdiction which the EU Member States have to destroy boats in the waters of third States or the high seas.

EUROPOL, FRONTEX, EASO and EUROJUST will meet regularly and work closely to gather information on smugglers modus operandi, to trace their funds and to assist in their investigation;

These bodies are respectively the EU police cooperation agency, the EU border control agency, the EU asylum support agency and the EU prosecutors’ agency. The asylum support agency has traditionally had little or nothing to do with this issue, and there is a risk that some of its funding is diverted. There is no express commitment to give it extra funds.

EASO to deploy teams in Italy and Greece for joint processing of asylum applications;

This will defray the cost of processing for those Member States and speed up processing times for overburdened administrations. It’s not clear whether this will simply be an application of existing rules which allow EASO to simply support national administrations, or whether there will be a shift to genuine ‘joint processing’ by a group of Member States or the agency as such. That would require fresh legislation.  

Member States to ensure fingerprinting of all migrants;

EU legislation already requires fingerprinting of all short-term visa applicants (once the EU’s Visa Information System is fully applied, in the next year or so), residence permit holders, asylum applicants and persons crossing borders without authorisation. All holders of EU passports (ie EU citizens) must also be fingerprinted. The only gaps here are non-visa nationals coming for short-term visits (ie citizens of countries like the USA and Canada) and irregular migrants who have ‘overstayed’ after a legal entry. However, after the EU’s Visa Information System is fully applied, the second group (overstayers) will simply be a sub-category of the first group (non-visa nationals), since everyone needing a visa will already have been fingerprinted. And proposed legislation establishing an entry-exit system will require the non-visa nationals to be fingerprinted too, although it will take a number of years for that legislation to be agreed and made operational. These various categories of people are subject to different rules as regards how the fingerprint information is stored and used; it’s not clear if the intention is to change those rules.

The very odd thing here is what fingerprinting of ‘all migrants’ has to do with the issue of migrants drowning at sea in an attempt to reach the EU. It would perhaps make sense to reiterate the requirement to fingerprint all those who apply for asylum or attempt to cross the border without authorisation (as all those migrants who attempt to cross the Mediterranean are doing), but the plan clearly refers to ‘all migrants’. So we can only conclude that this is a blatant attempt at policy laundering.

Consider options for an emergency relocation mechanism;

The concept of ‘relocation’ entails moving asylum-seekers and/or recognised refugees from the Member States which have an obligation to consider their claim, or which have recognised their refugee status, to other Member States. It would obviously reduce the pressure on the Member States which receive a significant number of refugee claims from migrants crossing the Mediterranean – most notably Malta, Italy (the island of Lampedusa) and Greece. However, it would entail either suspending the EU’s Dublin rules on asylum responsibility in part (requiring a legislative amendment) or encouraging voluntary offers from Member States which are not responsible under the rules. Both options have been discussed many times over the years with no success (Dublin amendments) or very little success (voluntary offers). The wording used here (‘consider options’) is so underwhelming that little can be expected.

A EU wide voluntary pilot project on resettlement, offering a number of places to persons in need of protection;

‘Resettlement’ is the process of taking some of the people in other (non-EU) countries who need international protection and moving them to the EU. This is the only one of the ten points which offers ‘safe passage’, ie a way for would-be asylum-seekers to enter the EU without running the risk of drowning when crossing the Mediterranean. The ‘number of places’ is not specified, and it should be noted that under EU financial law, a ‘pilot project’ is a short-term programme using only a small amount of money. Furthermore, the project is expressly ‘voluntary’. Overall, it seems that this one form of ‘safe passage’ being offered by the EU is very narrow indeed.

Establish a new return programme for rapid return of irregular migrants coordinated by Frontex from frontline Member States;

EU law specifies that asylum-seekers cannot normally be removed until a final negative decision has been taken upon their application. So this refers to people whose asylum application has definitively failed, or who never made such an application and have no other ground to stay. There are procedural rights in the EU’s Returns Directive for irregular migrants, but there is no mention of them (or the asylum laws) here. Frontex already has a role coordinating joint return flights; the intention is to devote more effort (and presumably resources) to removing people from the EU’s Mediterranean Member States.

Engagement with countries surrounding Libya through a joined effort between the Commission and the EEAS; initiatives in Niger have to be stepped up.

This is the only part of the 10-point plan that hints that the EU’s relations with third countries have a role to play. It isn’t clear what this ‘engagement’ will concern. Will it focus on the conditions in the countries of origin and transit, thereby ensuring that fewer people want to head to the EU in the first place? Or is the EU only concerned with the repressive aspects, such as tracking down smugglers and traffickers?

Deploy Immigration Liaison Officers (ILO) in key third countries, to gather intelligence on migratory flows and strengthen the role of the EU Delegations.

The intention here is to obtain more intelligence on migration flows, although it’s not clear what will be done with that intelligence once it’s obtained. There will be a cost for the EU and/or Member State budgets here.

The Australian solution?

Some have suggested that the EU adopt the supposed ‘Australian solution’, of sending boats to stop the migrants reaching the territory of the EU. In fact this is a highly simplistic understanding of Australian asylum policy. The Australians do not intercept most migrants just outside their country of origin or otherwise return them there directly. Rather the policy is to send asylum-seekers to various Pacific islands for processing and to live permanently if a claim is successful. Australia gives the countries concerned significant cash in return. Moreover, Australia has a very active resettlement policy, recently increasing the numbers of permits granted from about 13,000 to about 20,000.  So the asylum policy is justified by Australia as a means to stop people ‘jumping the queue’. Also, the policy is underpinned by indefinite detention of anyone who does make it to Australian shores without authorisation.

Could this policy be applied to the EU? There are some big legal problems. The European Court of Human Rights has ruled that migrants cannot simply be intercepted and returned to third States unless those States are safe (see the Hirsi judgment); it should be noted that conditions in some of the States participating in the Australian policy have been strongly criticized by human rights groups. Also, the EU’s Returns Directive bans indefinite detention of irregular migrants. That Directive does not apply to asylum-seekers, but EU asylum legislation applicable from July this year sets many new conditions regulating such detention. It’s highly arguable that detention of asylum-seekers cannot be justified (at the latest) once the final decision on the application has been made, or after the new EU deadlines to decide on asylum claims have passed. After that point the time limits for detention in the Returns Directive will apply.

Even if these legal problems could be overcome, could the Australian solution be replicated by the EU? The EU would have to find third countries willing to house large numbers of refugees and asylum-seekers, and pay them to do it. The numbers of migrants involved in Mediterranean crossings (about 200,000 in 2014) is far higher than those covered by the Australian solution (25,000 in 2012-13). So, although accommodating asylum-seekers in transit States is likely to play an important part in any long-term solution, this is easier said than done; and it’s important to note that the EU’s 10-point plan makes no mention of this issue.

Furthermore, the advocates for the Australian solution simply ignore Australia’s resettlement policy, which is one of the most generous in the world. Its 20,000 permits a year, for a population of 23 million, scale up to about 50,000 resettlement permits for the UK, and 450,000 across the EU. When the advocates of the Australian solution start to talk about that scale of resettlement, we should take them seriously – but not before.

Christians

Some have suggested that the UK and/or EU should focus exclusively on admission of Christian asylum-seekers, on the basis that they have ‘no other place to go’. Does that policy make sense? It’s undoubtedly true that some Christians face persecution, but so do many non-Christians – and Article 3 of the UN (Geneva) Convention on Refugees bans discrimination on grounds of ‘race, religion or country of origin’. It isn’t correct to suggest that Christians can’t live safely anywhere in any Arab or Muslim state: many of those States maintain the centuries-old tradition of letting Christians live without persecution, and indeed there are a large number of Christians living in Lebanon in particular. And it’s hard to see how this policy will work. Will Christians alone be rescued from boats in the Mediterranean, leaving the Muslims on board to sink? And how would asylum-seekers’ claims to be Christians be examined: by making applicants sit a Religious Education A-level on the boat? Or simply checking (for men and boys) to see if they are circumcised (and therefore likely to be Muslim) or not?

Comments

The first striking thing about the EU policy is that it pays little attention to the human emergency that triggered it: the deaths of hundreds of people, which resulted from a collective EU decision to stop search and rescue in the Mediterranean. There’s no express mention of the deaths themselves in the plan, and the Commission President’s statement on Sunday merely expressed his ‘deep chagrin’ at the deaths – as if someone had guzzled his last bottle of cognac.

Furthermore, the intention to expand the existing missions fails to mention any search and rescue aspects, and there is a very limited reference to expanding one form of safe passage.  No part of the plan mentions dealing with the situation in countries of origin, or helping countries of transit manage the number of migrants on their territory. Instead, there is a strong emphasis on expulsion of migrants from the EU. Overall, this leaves the impression that the ministers aren’t shocked that migrants have died – but rather irritated that some of them didn’t.

Arguments about the costs of rescue, or of asylum-seekers reaching the EU, are undercut by the implicit plans to spend considerable sums of money on a military mission, fingerprinting of migrants, expulsion, and intelligence gathering. So the argument isn’t really about economic cost – but the social and political impact of migration.

As for the intention to crack down on trafficking and smuggling, few will have sympathy for the vultures that profit from others’ suffering and frequently jeopardise the lives of hundreds of people. But it seems odd to focus on them in this plan without also trying to address the broader situation of the migrants themselves – as if the means by which people make dangerous journeys to the EU are more important than the reasons why they do this. On this point, the plan resembles the decades-long US policy of military missions in Latin America, trying to destroy drug crops. Admittedly, it’s harder to build new boats than to grow more drugs – but then, the migrants aren’t exactly coming on cruise ships. The policy may well have the effect of lowering the (already low) quality of vessels used to cross the Mediterranean, and increasing the cost of migrants' journey. Unless it forms part of a broader policy which aims to deal with the root causes of migration and the position of migrants in transit countries, it could make them less (not more) safe.

 Art credit: Alex Falco Chang

Barnard & Peers: chapter 26

Migrant deaths in the Mediterranean: What can the EU do?

 

Steve Peers

The latest tragedies in the Mediterranean add to the enormous and growing death toll of migrants crossing that sea. Today EU ministers will consider the issue as a matter of urgency, and the Commission is due to propose an EU strategy next month. Here are some thoughts as to what parts of the EU response should be.

First of all, it is necessary to reinstate a major search and rescue operation. The EU’s ‘Triton’ operation which replaced the Italian ‘Mare Nostrum’ operation from the end of last year is obviously inadequate as regards saving lives – which is not its main purpose in the first place. Equally the assumption that the termination of Mare Nostrum would reduce the number of migrants willing to undertake the Mediterranean crossing – and die in the attempt – was obviously mistaken.

The new operation need not be an EU operation as such, due to legal questions about how much the EU as such can set up a search and rescue operation. Possibly the EU, or at least a large group of its individual Member States, can contribute toward the coordination and funding of a joint operation, rather than leave this entirely up to the Italian government as before.

Secondly, the EU has an established system for border surveillance, known as Eurosur. Its main focus in border control but it has a subsidiary role as regards detecting migrants in need of rescue. It could be focussed more on the humanitarian aspect, if necessary by means of a rapid amendment to the legislation establishing it – or alternatively, if there are legal doubts about this, by a parallel agreement among the Member States.  

Thirdly, the EU should address the important role of the private rescue of migrants. At present, the EU Directive prohibiting the smuggling of migrants specifies that any assistance to irregular migrants is prohibited – even if the person or organisation concerned is not acting for profit. There is only an option for Member States to exempt humanitarian assistance from the prohibition. This legislation should be amended as soon as possible to make this exception mandatory, clarifying that this also exempts private sea vessels which assist those in need (in accordance with the law of the sea) also benefit from the exception. Private vessels which lose money as a result of offering assistance (for instance, because they were diverted from catching fish) should be compensated by national or EU funds if necessary. This amendment could be fast-tracked, pending a more comprehensive review of the legislation to consider the best criminal law response to smugglers and traffickers.

Fourthly, there is a need to address the situation in countries of origin and transit, so that fewer people feel the need to make this risky journey in the first place. This also takes account of realpolitik: it’s not socially, economically or politically feasible for the EU to offer protection to everyone in the world that needs it. Of course, solving the conflicts and poverty that cause desperate people to flee in the first place is far easier said than done. But it would certainly be possible to fully review EU foreign policies and development aid funding with a view to addressing the root causes of migration.

In terms of a legal response, there are several other external aspects of EU migration policy. For those who have a need for international protection, many already receive support or protection in neighbouring and transit countries, and the EU could step up its contribution to such assistance.  A proportion of the people concerned are already resettled by Member States, and the EU could increase its support for this resettlement process. It might be useful to amend EU asylum legislation to confirm that the persons concerned have refugee status in the Member States concerned, in accordance with the EU’s ‘Qualification Directive’, upon arrival.

There’s also an existing legal framework for Member States to consider applications for asylum lodged at their consulates in third (non-EU) countries. At the end of 2013, the EU’s main court (the CJEU) already ruled in the Koushkaki case that the EU’s current visa code requires Member States to issue visas to applicants if the criteria for issue are met. The visa code mainly applies to short-term visas, not visas for people who need long-term international protection. However, the code also provides for rules on the issue of a short-term visa with ‘limited territorial validity’ (LTV). These visas are not valid in all Schengen states, but rather valid usually in only the single Schengen State which issues them.  

According to the current visa code, an LTV visa ‘shall be issued…when the Member State concerned considers it necessary on humanitarian grounds, for reasons of national interest or because of international obligations’. The important point is that an LTV visa can be issued where the usual conditions for issuing a visa are not met, for instance where there is insufficient evidence of an intention to return to the country of origin. Obviously, where a person has a genuine protection need, a reluctance to return to her country of origin is perfectly understandable; indeed, it is built into the very definition of refugee or subsidiary protection status (ie a well-founded fear of suffering persecution or serious harm in that country).

It’s arguable the 2013 CJEU ruling in the Koushkaki judgment also applies to LTV visas, in light of the word ‘shall’. Admittedly, that word is then qualified by the words ‘considers it necessary’. But arguably, at least in cases involving a potential international protection need, the EU Charter of Fundamental Rights requires that where a person applies for a visa from a (Schengen) Member State, the existence of such a need must be considered if it is alleged, and an LTV visa must be issued if such a protection need exists. It can hardly be denied that EU law (and therefore the Charter) applies whenever a third-country national applies for a visa from a Schengen Member State.

So the EU and its Member States could agree that this is the correct interpretation of the existing law, and take action to put it into effect, for instance adopting guidelines or standard rules for consulates on how to apply such obligations. EU funds could assist with any additional costs for Member States.

There’s also an immediate opportunity to address this issue by means of legislation, since proposed amendments to the visa code that would fully overhaul it are currently under discussion in the Council and the European Parliament (EP). These proposals raise many different issues, and the Council and EP are still at an early stage of discussing them. But it would be possible to split up the proposal and adopt an amendment to the LTV rules on a fast-track basis.

In a previous blog post, I suggested a simple amendment to the visa code to this end. This would simply amend the rules to state that an LTV visa ‘shall be issued…when it is necessary in order to ensure the international protection of the person concerned in accordance with Directive 2011/95 [the Qualification Directive], or when the Member State concerned considers it necessary…’.

In the longer term, other difficult and controversial aspects of an external protection policy could be developed. It would be possible to develop ‘joint external processing’ of asylum claims, as long as such processing in no way prejudices applications made at the border or on the territory of Member States, and entails the entry and stay of persons with international protection needs either on the territory of Member States, or on the territory of third countries which offer an equivalent level of protection. Nor should joint processing prejudice the resettlement of those groups of persons (such as Syrian refugees) whose need for international protection is obvious.

The problems associated with such joint processing should not deter the EU from taking the immediate steps outlined here that could reduce the death toll on the Mediterranean by stepping up rescue efforts and by giving more people with an established protection need a form of safe passage to the EU – either by means of resettlement of established refugees or assessment of asylum-seekers’ protection needs as an adjunct to the visa application process. There is a moral imperative for the EU to act swiftly and effectively to address the issue.

 

Photo credit: Daily Mail

Barnard & Peers: chapter 26