Stathis Poularakis, Legal
advisor - Advocacy Officer Médecins du Monde – Greece*
* Reblogged from the EDAL blog. An earlier
version of this article was published in Greek on immigration.gr blog. The views and
opinions expressed in this article are those of the author and do not
necessarily reflect the official policy or position of Médecins du Monde –
Greece. Special thanks go to Evangelia Tzironi, PhD Candidate at the Law School
of the National and Kapodistrian University of Athens for proofreading the
article.
In mid-August
2018, Germany, Greece and Spain agreed
on the sketchy details of the initial migration compromise deal that was reached
on the sidelines of the EU Summit in Brussels in late June 2018. In this
context, the Ministers on Migration of Germany and Greece reaffirmed their
commitment by exchange of letters, to work towards common European solutions
and to avoid any unilateral measure with respect to migration and asylum.
In particular,
both countries underlined their support for concluding the revision of the
Common European Asylum System by end of 2018 “with the aim of achieving the
goal of fair sharing of responsibility and solidarity”. In the event of a
crisis – defined as a situation where asylum applications have surpassed a
certain percentage e.g. 140% of a State’s fair share of asylum applications
based on objective criteria (total population and GDP) – Germany committed to
support Greece in the Council (of the European Union), especially on the
adoption of additional support measures at European Union level. Germany agrees
also that further supportive and development measures need to be adopted on the
five Greek islands of Eastern Aegean, where the hotspot approach is
implemented, in order to assist local communities. Finally, Germany affirms its
commitment to increase the human resource capacity in Greece, through the EU
Asylum Support Office (EASO), with the aim to strengthen the asylum system.
The final
operational details of the aforementioned political agreement were annexed to
the letters, under the Title “Administrative Arrangement”. This blog post aims
to outline the key points of this “Arrangement”, to examine its legal nature
arguing that argue that this document is a bilateral treaty whose scope extends
beyond the Dublin Regulation, and to critically assess its impact on the EU
asylum policy.
The content of the Administrative Arrangement
The
Administrative Agreement is comprised of 15 articles and divided into three
sections. The first part includes arrangements for the readmission to Greece of
persons identified in the context of temporary
checks at the German-Austrian border, having previously applied for asylum
in Greece. The second part includes provisions for concluding pending Dublin
cases of family reunification from Greece to Germany, and finally, the third
section includes provisions on the review of the implementation of the
"agreement", the mutual dispute settlement and beginning and ending
of the aforementioned cooperation between the two countries.
In particular,
under the "Administrative Arrangement", the following are agreed:
Germany will
return to Greece, any adult third-country national who has been identified
during a check at the German-Austrian border and wishes to apply for
international protection if he/she has already applied for asylum in Greece
i.e. when an entry in Eurodac (the EU system of exchanging fingerprints of
asylum-seekers) indicates that the person has already requested protection in
Greece, and such entry is dated from July 1st, 2017 onwards. Unaccompanied
children (under the age of 18) at the time of the identification are excluded
from readmission to Greece.
The German
Authorities will provide notification of the refusal of entry to the Greek
responsible authority using the form annexed to the Agreement via fax or email.
The return should be initiated no more than 48 hours after the person has been
apprehended, unless the Greek side objects to the return within six hours from
the automatic confirmation of the receipt of the notification of the refusal of
entry, demonstrating why the conditions of the administrative agreement have
not been met. Within 7 days of the readmission, if the Greek authorities
demonstrate that the above conditions had not been met (refusal of entry in
error), Germany will readmit the person concerned without delay.
Germany commits
to swiftly concluding family reunifications from Greece in the framework of the
Dublin
III Regulation by the end of 2018, with respect to “take charge” requests
already accepted by the German Dublin Unit before 1 August 2018. It should be
noted that due to the high number of Dublin transfers from Greece to Germany
over the last year, asylum seekers entitled to be transferred to Germany under
the relevant provisions of the Dublin III Regulation, were “blocked”
in Greece for periods exceeding the six-month deadline provided by art. 29 of the
Regulation. Germany also undertakes to examine all pending “take charge”
requests that have been submitted before 1 August 2018 that have not been
examined yet within two months of the beginning of the cooperation between the
two parties based on this Administrative Agreement. The number of people to be
transferred from Greece to Germany is capped at 600 people per month and family
reunifications should be completed by December 2018.
At the same
time, the German authorities will examine and reply "without undue
delay" to all requests for re-examination submitted before 1 August 2018.
To this end, the Greek authorities will provide a relevant sortable list with
case numbers and submission dates. Passports and ID cards, marriage and birth
certificates, family booklets, as well as the transcript of the interview with
the person concerned, will be considered as evidence, when submitted in
relation to a currently pending request for re-examination. These documents
will be submitted in their original language. A translation in English will be
also submitted, if available. It is explicitly envisaged that the submission of
documentation in its original language (without translation) may not be used as
a justification for rejecting the request for re-examination.
The cooperation
between the two countries based on the Administrative Arrangement starts from
the day of its acceptance by the Greek Minister on Migration Policy (dated
18.8.2018). The two parties will review the implementation of the agreement on
a three-month basis. Each Party may withdraw from the Agreement by notifying
the other Party in writing at least three weeks in advance. Lastly, it is
explicitly envisaged that the agreement will discontinue upon entry into force
of the revised Common European Asylum System.
"Administrative Arrangement" or
international treaty?
The first issue
raised by this so-called "Administrative Arrangement" concerns its
actual legal nature.
Based on the
public statements made so far and the title given to the document, it could be
argued that the latter could be understood to be an informal non-treaty
instrument - an arrangement on operational issues and actions in line with EU
law. According to this argument this text seems to be in conformity with Article
36 of the Dublin III Regulation, which stipulates that Member States may, on a
bilateral basis, establish administrative arrangements between themselves
concerning the practical details of the implementation of this Regulation, in
order to facilitate its application and increase its effectiveness. Such
arrangements may relate to exchanges of liaison officers and the simplification
of the procedures and shortening of the time limits relating to transmission
and the examination of requests to take charge or take back applicants.
However, taking
as a point of departure that negotiating States have the autonomy to choose
between complex or simplified forms of express consent to be bound by a treaty
(in the present case by exchange of instruments under Article 13 of the Vienna Convention on the
Law of Treaties (VCLT), and given its content, it could also be argued that
the “Agreement” could be perceived as an international treaty concluded in
simplified form. This agreement in fact sets forth the “technical” modalities
of the earlier political agreement between Chancellor Merkel and Prime Minister
Tsipras in Brussels last June, in the sidelines of the EU Summit. International
treaties in simplified form are concluded without the need for ratification by
the State, nor the consent of the parliament. They are usually signed by
Ministers or any other body authorized under national law and are related to
technical or administrative issues of cooperation, military pacts concluded on
a battlefield or arrangements for the application of a binding (“typical”)
international treaty.
In order to draw
a safe conclusion on the nature of the “administrative arrangement”, all the
circumstances around the exchange of letters should be meticulously examined.
“Treaty” means an international agreement concluded between States in written
form and governed by international law, whether embodied in a single instrument
or in two or more related instruments and whatever its particular designation
(Article 2(1)(a) of the VCLT). Whatever its designation (convention, accord,
protocol, exchange of letters, agreed memorandum, memorandum of understanding),
the intention of negotiating parties to create binding legal obligations marks
the difference between treaties and informal instruments. To wit, even an
exchange of letters could be considered as an international treaty.
A closer look on
the actual content of the "Arrangement" suggests that this is not
just an informal international non-binding agreement or arrangement on
technical details of cooperation between the two Parties for the implementation
of the Dublin Regulation, but rather a legal instrument setting forth “new”
binding rules whose scope moves beyond the obligations established under the
Dublin III Regulation.
In fact, the
first part of the “Arrangement” contains clauses that are usually included in
readmission agreements. No such an agreement has been ever signed between
Germany and Greece. In particular, the clauses of the Arrangement lay down,
among others, the specific conditions for readmission, the competent
authorities of each State, the procedure to be followed, the responsible State
in terms of costs etc. A standard template form is also included so as to
facilitate the return. In reality, the “Arrangement” does not establish
simplified and streamlined procedure for “Dublin transfers” (the wording
“transfer” in not used in the text) but rather a fast-track readmission
procedure for persons refused entry at the German-Austrian borders, likewise in
any other case of an irregular migrant refused an entry in Germany.
Another crucial
element regarding the legal nature of this “Arrangement” lies with the specific
clauses on family reunification that undoubtedly enumerate commitments to which
the Parties have consented and their intention to create legal rights and
obligations that go beyond those already provided for in the "Dublin III”
Regulation. Namely, assuming the obligation to accept a transfer of an asylum
seeker from Greece to Germany upon expiry of the 6 months’ time-limit under Article
29 of the Regulation – where the respondent MS is relieved of its obligations
to take charge or to take back the person concerned – is a “new” obligation for
Germany enshrined in the "Administrative Arrangement".
The same also
applies for the obligation to re-examine all rejected requests for “take
charge”. To avoid any confusion, one should make a clear distinction between
the potential responsibility of Germany for the infringement of the time-limits
and conditions laid down in the Dublin III Regulation, e.g. for breaching EU
law, and the legal obligation of Germany to actually accept transfers for which
its responsibility has already ceased under “Dublin”. These obligations are now
explicitly assumed by the aforementioned "Administrative
Arrangement".
It is worth
mentioning that last year the competent Ministers of Greece and Germany had
reached to a similar informal
arrangement by which Dublin transfers to Germany were capped at 70 persons
per month for a certain period of time. This informal agreement, however, was
rather a "gentleman's agreement" between the two states without
creating clear binding obligations for both parties. In any case, the
conformity of this agreement to the Dublin Regulation is open to discussion,
since the Dublin Regulation does not foresee such caps on relevant transfers for
administrative convenience reasons.
Finally, one
could hardly argue that during Merkel and Tsipras΄ meeting in Brussels, where a
common political agreement was reached on migration, the two leaders concluded
a formal treaty under international law with the subsequent
"administrative arrangement” serving as a treaty in a simplified form,
laying down modalities for the application of the treaty concluded by the two
heads of state.
For all these
reasons, the "administrative arrangement" should not be considered as
a "gentlemen's agreement", nor as an administrative arrangement under
Article 36 Dublin III Regulation but rather as a binding bilateral treaty whose
provisions establish obligations that go beyond the scope of obligations
established under the Dublin III Regulation. The agreement thus is governed by
international law; an international treaty between Greece and Germany. This
contravenes EU law which does not allow legislation at national level or
bi/multilateral inter-se agreements in policy areas of shared competence, to
the extent that the EU has exercised its competence, as it did through the
adoption of the Dublin III Regulation (see TFEU Art 2(2); TEU Art. 4(3), third
indent, and Protocol 25 to the TFEU).
Dublin revisited or further violation of EU law? A glimpse into the future of EU asylum policy
Another key
point of concern is the impact of this bilateral agreement on EU’s asylum
policy.
Could this
“Administrative Arrangement” be seen as a new, enhanced and adapted to current
developments, version of the Dublin rules, that is to say a bilateral agreement
between two Member States that aims at strengthening the Dublin rules and
principles or just another agreement beyond the scope of Dublin Regulation
governed by international law?
One could argue
that such bilateral agreements are rather symbolic in nature. They indicate
that compromises at European Union level are feasible. As talks on the revision
of the Dublin III Regulation stall, the establishment of interim measures among
those Member States willing to move ahead collectively at European Union level
(“enhanced cooperation”) seems indeed to be the only possible way to actually
make progress in this area. However, that enhanced cooperation should to be
done under the framework of EU law, i.e. following the procedures of EU law and
not bilaterally as an inter-se agreement.
But is this
"administrative arrangement" actually such a measure of European Union
cooperation? Although the responsible Ministers expressly commit to continue
working towards common European Union solutions and avoiding unilateral
measures in relation to asylum and migration, this agreement is in fact just
another – deeper – derogation from/violation of the European Union acquis. In
fact, through such agreements, Germany cooperates with Member States serving as
a key point of entry in EU by creating a “Quasi-Dublin” system / a Dublin-like
system creating obligations that go beyond the scope of the Dublin III
Regulation (i.e. extension beyond the 12 month period for the responsibility
for irregular entry) and limitations that are not foreseen in the Regulation
(such as caps on the numbers of transfers under the family reunion clauses). A
system which, on the one hand, follows the general philosophy of the Dublin
Regulation (application of the first country of entry criterion), but, on the
other hand, is "free" from all “obstacles” that could jeopardize
swift returns – namely clauses and safeguards provided for asylum seekers by
the Dublin Regulation, such as family unity criteria, right to appeal against
the application of Dublin criteria and deadline to appeal against the transfer
decision etc.
Undoubtedly,
Southern Member States serving as the main gateways to Europe for third country
nationals are in absolute need of European Union solutions on the basis of
solidarity and fair responsibility sharing. In this context, the revision of
the Dublin III Regulation and the introduction of a permanent allocation
mechanism among European Union states is a key issue for Greece. One can hardly
wonder why Germany would then be interested in reforming the Dublin Regulation
if a more flexible "Quasi-Dublin" system- tailored to its needs- has
already being established. Bilateral agreements, such as this, with one of the
most prestigious EU countries, could draw away any possibility of a positive
revision of the Dublin Regulation for Southern Member States in the near
future.
In any case,
this "administrative arrangement" marks an alarming development in
the context of Greece’s migration policy. To date, Greece has signed and
ratified a number of agreements on the readmission of persons irregularly
entering or staying in its territory. For all these agreements, the usual process
of concluding international treaties was followed: Signing of an agreement,
protocol, or treaty and its ratification by the Parliament, according to Article
36 of the Greek Constitution. On the contrary, in the present case, it is the
first time that a readmission agreement is concluded by Greece through an
exchange of letters between Ministers. Though such an agreement is totally
valid and binding under international law, the fact that it not only deals with
international relations and migration policy but ultimately with human rights,
is concluded away from parliamentary scrutiny and procedures – without even being
published in the Government Gazette – raises important concerns on transparency
and the rule of law.
Barnard &
Peers: chapter 26
JHA4: chapter
I:5
Photo credit:
Fortune
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