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

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

Photo credit: LA(Phot) Guy Pool/MOD, via Wikimedia Commons

 

Advocate General Sharpston’s opinion on the lawfulness of ‘defeat devices’ in diesel motor vehicles (Case C-693/18, CLCV and Others)

 

Felix Beck, PhD candidate at the University of Freiburg, Germany; former research assistant of Prof. Dr. Silja Vöneky; research assistant at the law firm POSSER SPIETH WOLFERS & PARTNERS*

 

On 30 April 2020, Advocate General (AG) Sharpston delivered her opinion in the case of CLCV and Others (C-693/18). The case concerns the permissibility of so-called ‘defeat devices’ that reduce the effectiveness of emission control systems in motor vehicles. It is the first diesel emissions case to be decided by the CJEU, almost five years after it became public that certain car manufacturers allegedly distorted emissions tests carried out as part of the vehicle type-approval procedure.

The case concerns a judicial investigation into such conduct by the Parquet (Prosecutor’s Office) in Paris. The Vice-President of the Tribunal de Grande Instance (Regional Court) of Paris, who is in charge of overseeing the investigations, had doubts as to whether the vehicles in question were indeed in breach of the relevant rules of EU law, and referred the case to the CJEU for a preliminary ruling. In particular, the Court was asked for an interpretation of Regulation 715/2007, which governs the type-approval of light passenger and commercial vehicles with respect to emissions. In this regard, the CJEU has to clarify the meaning of the term ‘defeat device’ and the circumstances in which the use of such a device is permissible.

A ‘defeat device’ is defined in Article 3(10) of Regulation 715/2007 as any design element that senses physical parameters such as temperature or vehicle speed for the purpose of reducing the effectiveness of the emissions control system of a car under conditions which may reasonably be expected to be encountered during the normal operation and use of a vehicle. In this regard, the AG clarified in her opinion that the definition of a ‘defeat device’ not only covers technologies that mitigate emissions downstream, i.e. after their formation, but also strategies which already reduce the formation of emissions from the outset (para. 107). An example of such a technique is ‘exhaust gas recirculation’, where part of the exhaust gas is circulated back into the combustion chamber. This has the effect of reducing the formation of nitrogen oxides during the combustion process.

The AG then turned to the permissibility of such defeat devices. Article 5(2) of Regulation 715/2007 provides that ‘the use of defeat devices that reduce the effectiveness of emission control systems shall be prohibited’. However, the second sentence of Article 5(2) expressly provides that the prohibition ‘shall not apply’ under certain conditions, namely: (a) where the need for the device is justified in terms of protecting the engine against damage or accident and for safe operation of the vehicle; (b) when the device does not function beyond the requirements of engine starting; or (c) when the conditions are substantially included in the relevant emissions testing procedures. In these situations, the prohibition to use a defeat device does not apply, which means that such a device may be lawfully used.

In her opinion, AG Sharpston focuses on the exemption afforded by Article 5(2)(a) of Regulation 715/2007. The Regulation does not provide conclusive guidance as to the detailed circumstances in which the need for a defeat device is considered to be ‘justified in terms of protecting the engine against damage or accident’ and ‘for safe operation of the vehicle’.

The AG first recalled that according to the settled case-law of the CJEU, exemptions are generally to be interpreted strictly so that general rules are not stripped of their substance (para. 132). Indeed, the CJEU has often reiterated the principles that provisions of a legal act which derogate from a general principle established by that act must be interpreted restrictively, for instance in a 2004 judgment on the mutual recognition of driving licenses (para. 72) and in its 2018 judgment (discussed here) on the regulation of genome-edited organisms (para. 41). The AG also noted that such rules could not give rise to an interpretation which would go beyond the types of cases expressly envisaged by the provision in question (para. 132). Again, this represents settled case-law of the CJEU.

The Advocate General explained that the terms ‘damage’ and ‘accident’ are the decisive elements of the exception in Article 5(2)(a) of Regulation 715/2007. Both terms are separated by the disjunction ‘or’, which is commonly used to indicate that two or more terms are given as alternatives. Yet, AG Sharpston opted to conflate the meaning of both notions, assuming that both would only apply to protecting the engine against the occurrence of ‘immediate and sudden damage’ (para. 137). On that basis, the AG concluded that only an immediate risk of damage which affects the reliability of the engine and which leads to a concrete danger when driving the vehicle may justify the presence of a defeat device under Article 5(2)(a) of Regulation 715/2007. Measures to prevent accumulative damage, such as wear and tear, or a gradual soiling of the engine, are not – according to the AG – covered by the exemption. In the AG’s view, these are ‘ordinary and predictable’ effects of the normal use of the vehicle, which can be mitigated by regular, planned maintenance and which therefore could not constitute accidents, damage or threats to the safe operation of the vehicle which could justify the use of a defeat device (paras. 137-139).

On a closer look, this interpretation is highly questionable. Most critically, it ignores the inherent difference between the concepts of ‘accident’ and ‘damage’. An ‘accident’ is generally understood to mean an ‘unfortunate incident that happens by chance or unexpectedly, typically resulting in damage or injury’. Thus, an accident is commonly characterised by its ‘suddenness’. On the other hand, the notion of ‘damage’ more broadly denotes ‘physical injury that impairs the value or usefulness of a thing’. In contrast to an accident, damage need not occur suddenly or unexpectedly, but may also arise in the longer term. This is certainly true for the English language version of the Regulation, but it also applies to the corresponding terms ‘dégât’ in the French version and ‘Beschädigung’ in the German version of Article 5(2)(a) of Regulation 715/2007

Interestingly, the AG (implicitly) recognised this difference in the footnotes of her opinion, which expressly refer to the definitions of both terms in the French dictionary Le Petit Robert and the Oxford Dictionary of English (notes 48-50) which highlight the difference between ‘accident’ on the one hand and ‘damage’ on the other. Yet, in the main text the AG failed to take account of that difference, using the key characteristic of one alternative (namely, the ‘suddenness’ of an accident) to also define the other alternative (namely, ‘damage’). That outcome is evidently not in line with the natural meaning of the relevant terms and thus exceeds the customary rules of legal interpretation. It is trite that any schematic or teleological interpretation of terms of EU law must not go beyond the natural meaning of such terms. Thus, amalgamating the meaning of two terms which are expressly marked as alternatives is, in the authors’ view, illogical and legally impermissible.

Notably, AG Sharpston argued that her interpretation was supported by a teleological perspective, namely the Regulation’s aim of reducing vehicle emissions (para. 104 and 140, see Recital 6 to Regulation 715/2007). However, the recitals not only recognise the need to reduce vehicle emissions, but also the need to take account of the wider socio-economic implications of setting emissions standards, including for manufacturer’ competitiveness and the direct and indirect costs imposed on business (see Recital 7). The AG did not consider these aspects.

However, the European Union legislator clearly distinguishes in Article 5(2)(a) of Regulation 715/2007 between ‘damage’ on the one hand and ‘accident’ on the other. As such, the exemption covers both sudden (‘accident’) and non-sudden (‘damage’) events, including e.g. those cases where damage to the engine does not occur suddenly but rather due to accruing or accumulative effects.

In the end, it remains to be seen whether or not the CJEU will follow the AG’s interpretation of Article 5(2)(a) of Regulation 715/2007. In any event, while case C-693/18 is one of the last cases of Eleanor Sharpston’s illustrious career as Advocate General, it is certainly just the beginning of a series of ‘diesel’ cases to be ruled upon by the European Court.

 

*The firm is involved in the litigation, but the author is not involved in client work and comments are made in a purely personal capacity

 

Photo credit: YourMechanic

Updated Qs and As on the legal issues of asylum-seekers crossing the Channel

 

 

Professor Steve Peers, University of Essex

The issue of asylum seekers crossing the Channel has again arisen as a moral panic. These crossings raise a number of legal issues. There’s already a good discussion of many of them in the Free Movement blog, but I think it’s also useful to address some legal issues here, in a question and answer format. The following is an update of a January 2019 blog post on the issue; the updates particularly concern the Brexit process, with new material on bilateral treaties with France. 

Where are the international law rules on asylum?

 They are scattered all over the place incoherently. International lawyers like to describe their subject as ‘fragmented’, and that’s particularly true of asylum law. There are three main sources of law on asylum in Europe, and although they are legally separate, their rules overlap and interact. I won’t discuss every way in which this happens in this blog post – just those most relevant to the Channel crossings.

 The UN Refugee Convention

 The starting point is the United Nations (Geneva) Convention on the status of refugees, which defines what a refugee is and lists the rights of refugees. But that Convention does not deal with issues like asylum procedure, and has an uneasy and uncertain relationship with immigration law.

 ECHR

 Secondly, the European Convention on Human Rights (ECHR) says nothing about asylum explicitly, but the case law of the European Court of Human Rights has addressed a number of asylum-related issues, in particular arising from Article 3 ECHR, the ban on torture or other inhuman or degrading treatment. According to that case law, removal to another country to face a sufficiently serious risk of Article 3 treatment in that other country infringes Article 3 in the country removing the person concerned. A series of procedural obligations then follow from that.  (There are other international human rights treaties which take a broadly similar approach, but I focus here on the ECHR as its court rulings are binding and have a greater impact in practice).

EU asylum law

Thirdly, EU law has aimed to create a Common European Asylum System (CEAS) in several phases.  A first phase of EU asylum law was adopted from 2003 to 2005, and a second phase was adopted between 2010 and 2013. A (de facto) third phase of laws, responding to the perceived European refugee crisis of 2015, was proposed in 2016, but negotiations on those laws are still continuing (the Commission plans to attempt a relaunch of talks in autumn 2020).

 The CEAS consists of:

a) legislation on responsibility of asylum applications (the Dublin rules: currently the Dublin III Regulation);

b) the Eurodac system of taking fingerprints of asylum-seekers and ‘illegal’ migrants;

c) laws on the definition of ‘refugee’ and parallel ‘subsidiary protection’ status, and the rights of beneficiaries of either status;

d) asylum procedure;

e) reception conditions for asylum-seekers, ie rules on benefits, detention and childrens’ education; and

f) an EU asylum agency, which supplements Member States’ administrations applying asylum law, but does not replace them.  

As an EU Member State, the UK had an opt out from the EU’s Schengen system of (in principle) open internal borders, as well as an opt out on EU law on asylum, immigration and criminal law. In practice, the UK only opted in to some EU asylum laws: all of the first phase laws, but only some of the second phase laws (Dublin, Eurodac and the asylum agency).

Overall, the international asylum law rules are fragmented in various ways: the UN Refugee Convention only applies to certain issues, and has no enforcement mechanism; the ECHR case law is ad hoc and indirect; and while the EU asylum laws are potentially more coherent than the other two sources, only some of those EU laws apply to the UK. There’s also divergent national application of the laws, some of which is built in, as the various sources mostly set only minimum standards.

Can ‘illegal’ migrants be refugees?

The notion that ‘illegal’ migrants – ie those people who entered the country or arrived at the borders without authorisation – cannot be ‘genuine’ refugees is utter nonsense: morally, factually and legally. It’s inherent in the notion of fleeing a dangerous country that one might not have the documents to leave and/or the documents to enter another country – because the persecuting country might want to keep its dissidents where it can mistreat them, or because of moral panic in the country they might flee to.

This is recognised not just in popular culture – think of the plot underlying the romance of Casablanca – but also (for example) by the efforts of Raoul Wallenberg and others, who hardly felt constrained by the finer legal details in their efforts to save Hungarian Jews.

Legally, there’s no reference to immigration status in the definition of ‘refugee’ in the Refugee Convention (Article 1.A). Nor is there an exclusion from refugee status on the grounds of being an ‘illegal’ migrant in Article 1.F. Some refugee rights in the Convention are explicitly dependent on having lawful migration status, but some are not – most importantly the fundamental rule, in Article 33, that a refugee should not be sent to an unsafe country. 

Furthermore, there’s an explicit provision on the position of refugees who entered a country illegally – which would be irrelevant if they were not eligible to be refugees at all. In fact, Article 31 of the Convention restricts States from penalising refugees for irregular entry, subject to certain conditions. If the refugee doesn’t satisfy those conditions, a penalty for irregular entry could be imposed – but that does not mean that the person concerned is disqualified from being a refugee. For that matter, the ECHR and EU law don’t disqualify ‘illegal’ migrants from refugee status either. 

On the other hand, not all those who enter illegally are refugees: they must still meet the relevant criteria (fleeing their country of origin due to a well-founded fear of persecution due to race, religion, nationality, political opinion or particular social group). Moreover, it is still possible for States to argue that even though a person is (or might be) a refugee, their refugee status (or responsibility for considering their asylum claim) is the responsibility of another country. Let’s now turn to that issue. 

Don’t refugees have to apply in the first ‘safe country’ they enter – otherwise they are not genuine? 

While it is often strongly asserted that 'international law requires refugees to apply for asylum in the first safe country they enter', in fact the position is rather vaguer than that. The Refugee Convention doesn’t contain any express rule to that effect in the rules on the definition of refugee, or on the cessation (loss) or exclusion from being a refugee, as set out in Articles 1.A to 1.F of that Convention. 

However, there are some indirect suggestions in the Convention that the number of countries which a refugee has crossed through might be relevant. Article 31 of the Convention, which deals with ‘illegal’ entry (as discussed above), includes the condition that a refugee had to be 'coming directly' from the country which they had to flee, in order to avoid penalties for illegal entry. While the 'non-refoulement' rule in Article 33 of the Convention prevents States removing refugees to an unsafe State, it does not prevent refugees from being removed to a safe State. 

Furthermore, as noted already, some of benefits which the Convention gives to refugees (such as welfare and access to employment) are reserved for those who are lawfully resident or present in the territory; and the Convention does not require States to give refugees a lawful status under national immigration law. In particular, Article 32 of the Convention prevents expulsions of refugees in general (whether to an unsafe or a safe country, subject to exceptions), but its protection applies to ‘a refugee lawfully in their territory’. The obvious implication is that refugees not lawfully in the territory are protected only against expulsion to unsafe states, under Article 33. In fact, in its judgment on the validity of the EU law on relocation of asylum seekers (discussed here), the CJEU explicitly took the view (paras 338 to 344 of the judgment) that the Refugee Convention did not prevent removing an asylum seeker to another safe country, at least within the context of the EU’s relocation scheme. 

So overall, the Refugee Convention gives States a degree of flexibility to insist upon a 'safe third country' requirement, but there is no absolute rule that refugees must always apply in a ‘safe’ third country. If the Convention had intended to impose a firm rule in that regard, it would surely have said so expressly, defined the conditions for such a rule to apply, and provided for obligations for the first ‘safe’ country to readmit the refugee – for without such obligations the rule would not easily be workable. Moreover, the preamble to the Convention refers to the heavy burden which the grant of asylum may place upon some countries, and the need for international cooperation to avoid refugees becoming a source of tension between States. Taken as a whole, then, the drafters of the Convention recognized that a strict safe third country rule could impose undue burdens on countries neighbouring a conflict in some cases, but left it to States to work out the details of how to address such burdens when they occur.  

The EU’s Dublin rules are an example of a group of States working out such rules, and we’ll now look at them in more detail. But note that they don’t create obligations for asylum-seekers to apply in certain countries; they create obligations for States to admit those asylum-seekers if they are responsible for the application. Asylum-seekers can still apply in a State which isn’t responsible for them under the EU rules; but they might face the consequence that their application is deemed inadmissible (not unfounded on the merits) and they are transferred to the country responsible for their application, where they can apply for asylum (or pick up where they left off, if they had applied for asylum there already). This will make it de facto impractical for an asylum seeker to apply in a particular country, and one might describe the Dublin rules as setting out where asylum seekers should apply for asylum; but that’s not the same as a legal requirement to apply in a certain country. 

Travelling through one or more safe countries to apply in a particular country doesn’t mean that the asylum-seekers don’t have a genuine refugee claim; it just means that they prefer some countries to others, due to language or family links, for example. That doesn’t mean that they have a legal right to have their preference accepted; but nor does it mean that they are lying when they say that they faced persecution. 

(Note: part of this answer is adapted from my previous discussion of this issue in a 2015 blog post on the supposed EU refugee crisis). 

What do the Dublin rules say about which country has to consider an asylum application? 

It’s often claimed that the Dublin rules say that an asylum-seeker has to claim asylum in the first EU country they reach. Apart from the fact that the rules don’t regulate asylum seekers directly – as discussed above – the ‘first country they enter’ point is oversimplified. That’s not a rule as such, although in practice the Dublin rules will often – but not always – amount to assigning responsibility to the first country of entry. (For more, see my separate article and thread on the Dublin system).

The Dublin rules include a special rule for responsibility for unaccompanied minors, and then rules about responsibility for family members of someone who already has refugee or subsidiary protection status, or who has applied for it. (In fact, some asylum seekers come to the UK under the Dublin rules on the basis of such family member links). They also assign responsibility to a State which first issued an asylum seeker with a visa or residence permit, or which waived the visa requirement for them to enter. It also assigns responsibility to a State which they first entered illegally, or where they stay without authorisation. 

These criteria are often hard to prove, and the Dublin rules set out details about how States must cooperate applying them. It’s easier to apply them where the asylum-seeker has been fingerprinted already as an asylum-seeker or irregular entrant, because the Eurodac database then contains a record of this. Also, States have the option to consider an asylum application if they are not obliged to do so under the rules. 

It’s often argued that France is a ‘safe’ country for asylum seekers. The Dublin rules assume that all Member States are safe, but the case law of the CJEU and European Court of Human Rights have recognised exceptions, either where there is a systemic problem with the asylum system of a Member State (NS and MSS cases), or where there are problems for specific asylum seekers amounting to a real risk of torture or inhuman or degrading treatment (Tarakhel and CK cases). An asylum seeker might challenge their return to France under the Dublin rules on that basis (note that there's a recent judgment of the European Court of Human Rights, ruling that France breached ECHR standards for at least some asylum-seekers). If their challenge fails, this does not mean that they are not a genuine refugee; it simply means that their transfer to France, which is responsible for considering their asylum application, can go ahead. But this brings us to the question of how much longer the Dublin rules will apply between the UK and France. 

What’s the impact of Brexit? 

The UK is still bound by the UN Refugee Convention and the ECHR, because (as noted above) these are separate sources from EU law. In contrast, the impact of Brexit on the UK and EU asylum law is a rather different kettle of fish. 

The withdrawal agreement keeps in place the Dublin rules and other EU asylum legislation which binds the UK until the end of the transition period (discussed here), which is the end of 2020. During this period, the UK retains its opt out over new EU asylum laws (and its capacity to opt in to those laws, if they amend existing EU laws which apply to the UK). The withdrawal agreement contains no common rules on what happens to Dublin cases pending at the end of the transition period; the UK has adopted unilateral rules on this issue, but it remains to be seen what approach Member States will take. 

It’s possible that after that point a new treaty between the EU and UK, perhaps keeping in force the Dublin rules or some version of them, could be agreed. However, there is no reference to this possibility in the political declaration on the future relationship between the UK and EU (annotated here) – although that declaration is not binding, so can’t prevent such a treaty being negotiated if the two sides wish. Although the EU has signed Dublin ‘association agreements’ with some non-EU countries – Norway, Iceland, Switzerland and Liechtenstein – the rationale for this is that those countries are also associated with the EU’s Schengen system. In practice, the UK has tabled proposals for treaties on readmission of people and unaccompanied minors, which would replace aspects of the Dublin system, but the EU proposals do not so far deal with this issue. 

Alternatively the UK could arguably sign treaties or reach informal arrangements with individual Member States. (It’s not clear to what extent EU asylum laws confer external competence on the EU on asylum issues, which might limit Member States from doing this). Failing that (or in addition to it), the UK might try to make greater efforts than it does now to return asylum-seekers to non-EU countries – although the basic international law obligations (in the Refugee Convention, the ECHR, and under other international law) not to return a refugee to an unsafe country will still apply. 

The notion that those intercepted in the Channel or detected after crossing the Channel could be forcibly returned to France without that country’s consent is a non-starter (as is patrolling French territorial waters without consent). The referendum result is not a mandate to ‘take back control’ of a different country – least of all a country which English forces were booted out of in 1453. Comparisons to Australian policy miss the point: that country intercepts asylum seekers in international waters, and obtains the consent of the country or territory which it sends asylum seekers to. 

However, the separate bilateral treaties in force between the UK, France and other nearby states relating to ‘juxtaposed controls’ – the exercise of power by the immigration control officers of one country on the territory of another – will not automatically cease to apply at the end of the transition period. These include notably the Le Touquet treaty, as supplemented in 2018 by the Sandhurst agreement, which provides for some broader UK/France cooperation. Note, however, that while juxtaposed controls are linked to an asylum responsibility system, and the former treaty includes a provision on responsibility for asylum claims made to UK border officials exercising controls in France (or before a vessel departs), they are not a full asylum responsibility system as such. In particular these treaties have no direct impact on people who evade such controls by crossing the Channel on boats without authorisation. The UN Protocol on the trafficking in persons, the Council of Europe Convention on trafficking in human beings and the UN protocol on smuggling of migrants oblige States to take back their citizens and some permanent residents who have been smuggled or trafficked; but there's notably no obligation to take back other non-citizens who have been smuggled or trafficked from their territory.

The end result of this is that for one category of non-EU citizens – asylum-seekers whose application would be the responsibility of another country under the Dublin rules – the effect of Brexit may be ultimately to reduce UK control of migration, not increase it. What a tangled web some people weave, when first they practice to deceive.

*Amended on August 9 2020, as regards asylum applications made to UK border officials under the Le Touquet treaty. Amended on August 12 2020 to add a sentence on the UN Protocols on trafficking and smuggling of persons and the Council of Europe Convention on trafficking in human beings. Amended on August 13 2020 to add a reference to a recent ECtHR judgment against France. Updated August 17, 2020 to add link to separate article and thread on the Dublin system.

Barnard & Peers: chapter 27, chapter 26

JHA4: chapter I:5

Photo credit: whitecliffsofdover.co.uk