Migration in Europe and the Problems of Undercriminalisation

 

By Amanda Spalding, Lecturer in Law, University of Sheffield

Photo credit: Gzen92, via wikicommons media

Introduction

As five million refugees enter Europe having fled Ukraine, Denmark and the UK prepare for off-shore processing of asylum applications and Frontex tells us that in the first half of 2022 irregular entries to the European Union are up 84%, it is difficult to keep up with rapid and ever-changing laws and policies on migration. However, it is important to continue to reflect on the broader legal context that these developments are situated within, especially the human rights framework that will be crucial in providing some level of protection. This protection, though, is far from robust and subject to being increasingly undermined by other trends in the law.

The following blog post summarises some of the main themes of my new book, The Treatment of Immigrants in the European Court of Human Rights.

The Criminalisation of Immigration

The criminalisation of immigration has long been noted by scholars across Europe and beyond. The criminalisation of immigration – sometimes called ‘crimmigration’- refers to the increased entwining overlap of the criminal justice system and the immigration system. This entwining takes multiple different forms including the law. The legal framework surrounding immigration increasingly draws on the criminal law by creating a huge number of immigration offences. This includes the criminalisation of the most basic immigration offences such as irregular entry or stay which is widely criminalised in Europe with varying levels of seriousness (see the Country Profiles by the Global Detention Project). For example, the level of fine for such an offence can be relatively low such as in the Czech Republic and Estonia where maximum fines are below €1,000 whereas in countries such as Austria, Cyprus, Italy and the UK maximum fines exceed €4,000. Most European states, including the UK, Sweden, Norway, the Netherlands, Ireland, Germany, France, Finland and Denmark, set the maximum prison term for these types of crime at between six months to one year. In practice though some states such as Germany and Finland rarely use imprisonment whereas in others such as Bulgaria and the Czech Republic there is evidence of extensive inappropriate use of imprisonment against asylum seekers.

Criminalisation is not confined to migrants themselves but also affects those who facilitate their irregular entry and stay. Article 1(1)(a -b) of the EU Facilitation Directive requires Member States to create appropriate sanctions for those who deliberately assist irregular entry to or stay in a Member State with Article 1(1)(b) requiring the imposition of sanction on anyone who does so for financial gain. The aim of these measures was, at least in part, to tackle organised crime. Article (1)(2) of the Facilitation Directive does allows Member States to provide exceptions for those who provide such assistance for humanitarian reasons but it does not require them to do so. Thus, there are varying standards across Europe as to when the facilitation of entry or stay is a punishable offence with some countries allowing for broad criminalisation including situations of humanitarian assistance. The prosecution of individuals providing help such as Lisbeth Zornig Andersen in Denmark, the criminalisation of rescue where those who aid migrant boats in distress as sea have faced criminal charges and extensive criminalisation of NGO organisations providing asylum and humanitarian assistance have all been incredibly controversial. Many states have also gone further and criminalised other interactions with migrants such as the letting of accommodation to those with irregular status.

Immigration and criminal law have become further entwined by the increased use of immigration measures as a consequence of criminal conviction. Although public security has long been a ground for deportation in many European countries, its use in recent years have become increasingly punitive and severe. Over the last twenty years states such as the UK, Denmark and Germany have all passed laws that make deportation an automatic result of many criminal convictions and the UK and Norway now have separate prisons to hold foreign national prisoners.

There has also been a significant increase in the immigration detention estate across the EU with varying types and uses as explored by Elspeth Guild in her ‘Typology of different types of centres in Europe’ for the European Parliament. There has also been a huge increase in surveillance of migration. The EU has created a ‘plethora of systems’ regarding border control including the EURODAC database which holds migrant fingerprint data, the Visa Information System (VIS) which stores the biometric information on all third country nationals who apply for a visa in the Schengen area and Eurosur which is a surveillance system which uses drones, sensors and satellites to track irregular immigration. The use of fingerprint and other surveillance technology in immigration control in and of itself has connotations with the criminal law but this is further compounded by Europol (European Police Office) and national law enforcement agencies being given access to some of this data.

The Problem of Undercriminalisation

There are thousands of other elements to the criminalisation of immigration trend, not least the rhetoric surrounding migration in many European states, but there is a possibility that focusing too much on criminalisation is actually a bit of red herring. The complex powers and systems in immigration law and policy mean that much of the stigma and severity of the criminal law is being endured by migrants but often without the concurrent procedural safeguards that the criminal law provides. The problem for immigrants may be then conceptualized as a problem of ‘undercriminalisation.’ Ashworth and Zedner offer a clear definition of this practice: “undercriminalisation can be said to occur when the state sets out to provide for the exercise of police power against citizens in alternative (non-criminal) channels which are subject only to lesser protections inadequate to constraining an exercise of power of the nature and magnitude involved… undercriminalisation occurs where the failure to designate a preventative measure as criminal deprives the citizen of what is due to her, in view of the substance of the restrictions on liberty and possible sanctions involved in the ostensibly preventative measure.”

Thus, in a perverse way, immigrants might be better off if the whole system was being criminalised as they’d benefit from far more procedural safeguards and judicial oversight than they do now. It is also possible that this is not simply ‘undercriminalisation’ but the beginnings of a two-tier system in both criminal justice and human rights. The intersection of these two can already been seen in the UK government’s proposed Bill of Rights Bill which seeks to severely limit certain human rights for migrants, particularly foreign national offenders.

The ECtHR and Migration

In order to appreciate the risk of this two-tier system, it is important to understand how the European Court of Human Rights has responded to the increasingly harsh immigration system and where there are significant gaps in protection. For example, the lack of a proper necessity and proportionality test when considering the arbitrariness of immigration detention means it has the lowest level of protection of any form of detention and as Professor Costello put it: has been left “in its own silo.” Likewise the failure of the Court to apply the right to a fair trial contained in Article 6 to immigration decisions has barely been discussed by academics and advocacy organisations despite the fact that this is an incredibly powerful and fundamental right that would serve as a crucial check on state power. The fact that immigration decisions and detention are becoming increasingly bound up with the criminal law means that we should be especially careful to scrutinise the legal approach to such issues, with many criminological and sociological scholars challenging the long-held legal conception of immigration measures as non-punitive.

Finally, it is important to continuous reflect on the fact that the criminalisation phenomenon is part of a wider trend of very harsh immigration regimes in Europe and the two are often related. The criminalisation phenomenon may increase the harshness with which immigrants are dealt with and exacerbate existing issues, but it is not always the root problem in the failure of the Court to protect migrants fully.  As already demonstrated in depth by others such as Professor Costello and Professor Dembour, there are significant issues with how the European Court of Human Rights approaches migrants’ rights and that to truly understand the treatment of immigrants in Europe, the criminalisation of immigration framework may be insufficient. This is a trend that must be subject to rigorous scrutiny. Beyond the clear moral issues with having a two-tier human rights and criminal justice system, the Court’s approach poses other dangers. The general failure of the Court to engage in proper scrutiny of state immigration power and policies means that it may allow racial discrimination to go unchecked. The approach of the Court to immigration matters may also seep into other areas of its case-law and mean a general erosion of rights for everyone, immigrants and citizens.

 

 

 

Should the EU Ban the Real-Time Use of Remote Biometric Identification Systems for Law Enforcement Purposes?

 

Asress Adimi Gikay (PhD)

Senior Lecturer in AI, Disruptive Innovation, and Law

Brunel Law School & Brunel Centre for AI(London, UK)

Twitter: @DrAsressGikay

Photo credit: Irbsas, via Wikimedia commons

 

The Call for Ban on Real-Time Remote Biometric Identification System

It has been around two years since the European Commission introduced its Draft Artificial Intelligence Act ("EU-AIA), which aims to provide an overarching AI safety regulation in the region. The EU-AIA's risk-based approach has been severely criticised mainly for failing to take a fundamental rights approach to regulate AI systems. This post focuses on the EU-AIA's position on the use of Real-Time Remote Biometric Identification Systems (RT-RBIS) by law enforcement authorities in public spaces, which continues to cause the most controversy.  

The EU-AIA defines RT-RBIS as a "system whereby the capturing of biometric data, the comparison and the identification all occur without a significant delay" [EU-AIA Art. 3(37)]. The regulation covers the real-time processing of a person's biological or physical characteristics, including facial and bodily features, living traits, and physiological and behavioural characteristics, through a digitally connected surveillance device. The most commonly known RT-RBIS is facial recognition technology (FRT)—a process by which an AI software identifies or recognises a person using their facial image or video. The software compares the individual's digital image captured by a camera to an existing biometric image to estimate the degree of similarity between two facial templates and identifies a match. In the case of real-time systems, capturing and comparing images occur almost instantaneously.   

As EU institutions, Member States, and stakeholders continue to discuss the EU-AIA, there is growing dissent against the use of RT-RBIS for law enforcement purposes in publicly accessible spaces. In 2021, the European Parliament invited the Commission to consider a moratorium on the use of this technology by public authorities on premises meant for education and healthcare. In response to the EU Council's latest proposed revision of the EU-AIA, on October 17, 2022, 12 NGOs wrote a letter to the EU Council reiterating the need to prohibit the technology unconditionally.  

  

The Risk Posed by the Technology

RT-RBIS poses multiple risks that might jeopardise individual rights and citizens’ overall welfare.

As the technology is still evolving, there remains the risk of inaccurate analysis and decisions made by the system. In the United States, police have used FRT to apprehend individuals suspected of a crime where multiple instances of mistaken identification led to wrongful arrests and pre-trial incarcerations. In one example, a Black American wrongly identified by a Non-Real Time FRT for suspicion of shoplifting, resisting an arrest and attempting to hit a police officer with a car spent eleven days in jail in New Jersey. Between January 2019 and April 2021, 228 wrongful arrests were reportedly made based on FRT in the State of New Jersey. 

The deployment of RT-RBIS in public spaces could cause more significant harms compared to Non-Real time biometric identifications systems. These harms include missing flights, false arrests, and prolonged and distressing police interrogations that have adverse socio-economic and psychological effects on law-abiding members of society. 

RT-RBIS could also be applied discriminatorily, disproportionately targeting specific groups. In a 2019 study, researchers have found that FRT falsely identifies "Black and Asian faces 10 to 100 times more often than white faces." False positives were found to be between "2 and 5 times higher for women than men." Whilst an ethical and inclusive machine learning programme could alleviate this, the potential for discriminatory application of the technology cannot be ignored. In the UK, the existing policing practice has been criticised for subjecting ethnic minorities to disproportionate stops and searches. Indeed, the police should not be allowed to use technology to maintain similar stereotypical practices.

Lastly, RT-RBIS could continue to normalise surveillance culture and increase the infrastructure for it. Public spaces such as airports, train stations, and parking lots could be equipped with cameras that law enforcement authorities could activate for live biometric identification in case of necessity. This could expose the public to the risk of state surveillance. The use of FRT to crack down on the exercise of democratic rights by authoritarian governments is becoming a common practice.  Currently, there is an ongoing legal challenge against Russia before the European Human Rights Court for mass surveillance of protests using FRT.

The risks highlighted above must be addressed seriously and comprehensively. However, is a complete ban on the use of the technology a reasonable solution? 

Qualified Prohibition and Fundamental Rights Approach under the EU AI Act

Due to the high risk to fundamental rights  posed by some AI systems, scholars have argued that the EU-AIA should take a fundamental rights approach in regulating these AI systems. As fundamental rights are given strong legal protection, any measure that interferes with them should meet three legal requirements:

Interference  with derogable rights is allowed for a narrowly defined, specific and legitimate purposes prescribed by law, and subject to the tests of necessity and proportionality.

The burden of proving the necessity and proportionality of interfering with fundamental rights lies with the authority seeking to interfere with such rights.

A court or a similar independent body determines whether the authority has met the threshold of its burden of justification.

These requirements involve a careful judicial balancing act. The EU-AIA's qualified prohibition of using RT-RBIS effectively adopts the same approach. 

First, the EU-AIA permits, by way of exception, the use of the technology for narrowly defined, specific, and legitimate purposes [EU-AIA Art. 5(1)(d)]. These purposes are, (i) the targeted searches for specific potential victims of crime, including missing children; (ii) the prevention of a specific, substantial and imminent threat to the life or physical safety of natural persons or a terrorist attack; and (iii) the detection, localisation, identification or prosecution of a perpetrator or suspect of a crime with a maximum sentence of at least three years that would allow for issuing a European Arrest Warrant. These are specific and legitimate purposes for restricting fundamental rights, depending on the context. 

Second, the relevant law enforcement authority must demonstrate that the use of the technology is justifiable against: (a) the seriousness, probability and scale of the harm caused in the absence of the use of the technology; (b) the seriousness, probability and scale of consequences of the use of the technology for the rights and freedoms of all persons concerned; and (c) the compliance of the technology's use with necessary and proportionate safeguards and conditions in relation to the temporal, geographic and personal limitations[EU-AIA Art. 5(2)-3]. The authority proposing to use the technology bears the burden of justification.

Third, the relevant law enforcement authority must obtain prior express authorisation from a judicial or a recognised independent administrative body of the Member State in which the technology is to be used, issued upon a reasoned request. If duly justified by urgency, the police may apply for authorisation during or after use [EU-AIA Art. 5(3)].

The preceding analysis demonstrates that the EU-AIA does not give a blank cheque to the police to conduct spatially, temporally, and contextually unlimited surveillance. Despite the EU-AIA not explicitly employing fundamental rights language in the relevant provision, it entails a balancing act by courts, that must determine whether the use of RT-RBIS is necessary and proportionate to the purpose in question by considering multiple factors, including human rights. 

 

The Call for Categorical Prohibition is Unsound

The fear of increasing surveillance is one of the grounds for the heightened call for the complete prohibition of RT-RBIS. Nevertheless, viewed within the overall context, the envisioned use of the RT-RBIS under the EU-AIA does not significantly change the existing surveillance culture or infrastructure.   

 

Amid Corporate Surveillance Capitalism

Contemporary societies now live in massive corporate surveillance capitalism. Big Tech companies such as Facebook, Google, Twitter, Apple, Instagram, and many other businesses access our personal data effortlessly. They know almost everything about us— our location, addresses, phone numbers, private email conversations and messages, food preferences, financial conditions and other information we would prefer to keep confidential. Surveillance is the rule rather than the exception, and we have limited tools to protect ourselves from pervasive privacy intrusions. 

Whilst surveillance, if employed by law enforcement, is used at least in theory to enhance public welfare, such as prosecuting criminals and delivering justice, Big Tech uses it to target us with advertisements or behavioural analysis. The fear of law enforcement's use of RT-RBIS in limited instances is inconsistent with our tolerance for Big Tech corporate surveillance. This does not mean we must sink further into surveillance culture, but we should not apply inconsistent policies and societal standards, detrimental to the beneficial use of the technology.  

 

Minimal Change in Surveillance Infrastructure

 The deployment of RT-RBIS as envisioned by the EU-AIA is unlikely to change the current surveillance infrastructure significantly, where Closed-Circuit Television (CCTV) cameras are pervasively present. In Germany, in 2021, there were an estimated 5.2 million CCTV Cameras, most facing publicly accessible spaces. In the UK, there are over five million surveillance cameras, over 691 000 of which are in London. On average, a London resident could be caught  300 times on CCTV cameras daily. 

The police can access these data during the crime investigation, probably without needing a search warrant in practice. It is improbable that private CCTV camera owners refuse to provide access footage to the police due to a lack of a search warrant, unless they are involved in the crime or protecting others. At the same time, footage from these cameras play an instrumental role in solving serious crimes. However, the overall picture surveillance infrastructure would not significantly change; if it does, it is for a better public good.

 

Ethical Development and Use Guideline

The potential biases or disproportionate use of the technology against certain groups could be tackled by designing ethical standards for the development, deployment and use of AI systems. These guidelines include ensuring that the AI systems are bias-free before deployment and requiring law enforcement authorities to have clear, transparent and auditable ethical standards. The EU-AIA itself has several provisions to ensure this.

 

Maintaining the EU-AIA's Provisions on RT-RBIS

The use of RT-RBIS, as envisioned under the EU-AIA, does not fundamentally change the existing surveillance culture and infrastructure. Nor does it unreasonably increase the surveillance power of the state. On the contrary, a categorical ban would impede beneficial limited use. Therefore, the provisions of the EU-AIA governing the limited use of RT-RBIS by law enforcement authorities in publicly accessible spaces must be maintained. Stakeholders should resist the temptation to implement radical solutions that will harm societal interest, and focus on developing ethical guidelines for development, deployment and use of the technology. 

A boost for family reunification through the Dublin III Regulation? The CJEU on the right to appeal refusals of take charge requests

 

 

 

Mark Klaassen, Leiden University

Photo credit: DFID 

An unaccompanied minor has the right to appeal the refusal of a take charge request by the receiving Member State. This is the conclusion of the Court of Justice of the EU (CJEU) in the I. & S. judgment. The preliminary question posed by the District Court of Haarlem in the Netherlands was interesting from the outset because the Dublin III Regulation itself does not provide for such right to appeal. The take charge request procedure functions between two Member States and the individual asylum seeker is not a party to this procedure. The referring court essentially asked the CJEU whether the right to an effective remedy as protected by Article 47 of the Charter of Fundamental Rights obliges the Member States to provide for an appeal procedure against the refusal of take charge requests. In this blog, I discuss the reasoning of the Court and the implications for the application of the Dublin III Regulation.

 

The applicant is an Egyptian national who applied for asylum in Greece as an unaccompanied minor. His uncle lives in the Netherlands and the applicant would like to join him there as well. Based on the Dublin III Regulation, Greece made a take charge request to the Netherlands. As prescribed by Article 8(2), Greece deems that the Netherlands is responsible for handling the asylum request of the applicant. The Netherlands had refused the take charge request because it deemed that the applicant did not substantiate the existence of family ties with his uncle. Greece requested the Netherlands to reconsider the refusal, but this request was denied. The applicant and his uncle started proceedings against the refusal before the Dutch courts. The administrative appeal was declared inadmissible by the Dutch authorities because the Dublin III Regulation does not provide for a right to appeal the refusal of a take charge request. In the appeal against this, the referring court asked preliminary questions to the CJEU.

 

Based on Article 27(1) Dublin III Regulation, an asylum seeker has the right to appeal a transfer decision made by the sending State. But when the receiving State refuses a take over or take charge request, no transfer decision is made at all. The CJEU observes that even though Article 27(1) does not provide for a right to appeal the refusal of a take charge request by the receiving State, it does not exclude the possibility that such right to appeal exists. The Court refers to its earlier case law to conclude that the Dublin III Regulation is not only an instrument that functions between the Member States, but that it is also intended to afford rights to asylum seekers. Based on this assertion, the Court ruled in Ghezelbash that asylum seekers must be able to appeal the application of the criteria which determine which Member State is responsible to deal with an asylum request.

 

In the present judgment, the Court also applies this reasoning to the refusal of a take charge request of an unaccompanied minor. According to the Court, the legal protection of an asylum seeker may not be dependent on the acceptance or refusal of a take charge request (para 41).That would hinder the effectiveness of the right of the unaccompanied minor asylum seeker to be reunified with the family member lawfully residing in the receiving Member State (para 42). The Court holds that based on the right to an effective remedy, an asylum seeker has the right to appeal both the wrong application of the criteria, as well as the refusal of a take charge request (para 45). Furthermore, the right to appeal the refusal of a take charge request is also based on the right to respect for family life and the best interests of the child, as protected by respectively Article 7 and 24(2) Charter. An asylum seeker has the right to invoke the protection of these rights and therefore a procedure must exist to do so (paras 47-49). The family member residing in the receiving Member State does not have the right to appeal the refusal of a take charge request. The Court reasons that Article 27 does not grant appeal rights to the family member at all and therefore the family member also does not have the right to appeal the refusal of a take charge request.

 

This judgment makes it necessary for the Member States to provide for the possibility to appeal the refusal of a take charge request to the authorities of the receiving Member State. This is a novelty in EU asylum law. The Court does not give further guidance on this appeal procedure. In his Opinion, Advocate-General Emiliou observes that in the absence of concrete guidance in the Regulation itself, the appeal procedure falls within the procedural autonomy of the Member States, which is limited by the principle of effectiveness. The AG argues that this principle requires that the asylum seeker is informed of the reasons for the refusal of the take charge request. The AG deems it most appropriate if the authorities of the sending Member State inform the asylum seeker of the reasons of the refusal by the receiving Member State. Even though the Court has not made this explicit, in my view the reasoning of the AG is still applicable. Not informing the asylum seeker of the reasons for a refusal would undermine the effectiveness of the right to appeal because the asylum seeker would not know on what grounds the take charge request has been refused. Furthermore, the receiving Member State is already obliged to motivate the refusal of the take charge request to the sending Member State based on Article 5(1) Commission Regulation (EC) No 1560/2003. As the applicant is residing in the sending Member State at the moment that the take charge request is refused, it seems the most appropriate solution that the authorities of that Member State inform the applicant of the reasons of the refusal of the take charge request by the receiving Member State and the procedure to appeal this refusal. This, however, requires coordination between both Member States involved.

 

Having established that under the Dublin III Regulation an asylum seeker has the right to appeal the application of the criteria (Ghezelbash) and the refusal of a take charge request (I. & S.), a remaining question is whether an asylum seeker has the right to appeal against the refusal of a sending Member State to make a take charge request in the first place. In my view, the reasoning of the Court in I. & S. can be applied to that question as well. The Dublin III Regulation aims to provide concrete rights to asylum seekers and lists the criteria for determining the responsible Member State. An asylum seeker, however, is dependent on the sending Member State to make a take charge request. If the sending Member State simply refuses to make a take charge request, for whatever reason, the Dublin III Regulation does not provide the asylum seeker the possibility to appeal against this refusal. In my view, even though Article 27 Dublin III Regulation only grants the right to appeal a transfer decision, reading the criteria from the Regulation as rights for asylum seekers implies that refusing to apply the criteria would undermine the right of the asylum seeker to be transferred to a Member State where a family member is legally present. For this reason, asylum seekers must be able to challenge the refusal to make a take charge request.

 

The reasoning of the Court is also interesting in the light of the current negotiations regarding the reform of the Dublin system. Article 33(1) of the Proposal for a Regulation on asylum and migration management (COM(2020) 610 final) provides for a limitation of the right to appeal. It states that the scope of the legal remedy shall be limited to the risk of ill-treatment within the meaning of Article 4 Charter and the application of the criteria relating to family life. This proposal from the Commission is an attempt to limit the effects of the Court’s ruling in Ghezelbash. By repeating Ghezelbash and emphasising that the right to appeal is based on the Charter of Fundamental Rights in the I. & S. judgment, it seems unlikely to me that the Court would deem limiting the scope of the legal remedy to be lawful.

 

Considering that because of the structure of EU asylum law, family members with an asylum background often find themselves in different Member States, in practice the Dublin III Regulation can function as an instrument to bring families together. By placing family ties at the top of the pyramid of criteria in the Dublin system, this was also the intention of the EU legislature. The judgment of the CJEU in I. & S. makes clear that a refusal of a take charge request may violate fundamental rights and therefore a legal remedy must be made available by the Member States. This gives asylum seekers an extra tool to enforce the application of the Dublin criteria to reunite with family members.