Resistance is futile: the new Eurodac Regulation – part 4 of the analysis of new EU asylum laws

 

Professor Steve Peers, Royal Holloway University of London

Photo credit: Rachmaninoff, via Wikimedia Commons

Amendments to this blog post since its original publication are marked by asterisks.* Most recent amendment: April 26 2024. 

Just before Christmas, the European Parliament and the Council (the EU body consisting of Member States’ ministers) reached a deal on five key pieces of EU asylum legislation, concerning asylum procedures, the ‘Dublin’ system on responsibility for asylum applications, the ‘Eurodac’ database supporting the Dublin system, screening of migrants/asylum seekers, and derogations in the event of crises. These five laws joined the previously agreed revised laws on qualification of refugees and people with subsidiary protection, reception conditions for asylum-seekers, and resettlement of refugees from outside the EU. Taken together, all these laws are intended to be part of a ‘package’ of new or revised EU asylum laws.

I’ll be looking at all these agreements for new legislation on this blog in a series of blog posts (see the agreed texts here), unless the deal somehow unravels. This is the fourth post in the series, on the new Regulation on Eurodac – the system for collecting personal data to attempt to ensure the operation of the EU’s asylum laws. The previous blog posts in the series concerned the planned new qualification Regulation (part 1), the revised reception conditions Directive (part 2), and the planned new Regulation on resettlement of refugees (part 3). A later blog post covers the new Regulation on screening of migrants (part 5).*

As noted in the other posts in this series,* all of the measures in the asylum package could in principle be amended or blocked before they are adopted, except for the previous Regulation revising the powers of the EU asylum agency, which was separated from the package and adopted already in 2021. I will update this blog post as necessary in light of developments. (On EU asylum law generally, see my asylum law chapter in the latest edition of EU Justice and Home Affairs Law; the summary of the current Regulation below is adapted from that chapter).

The new Eurodac regulation: background

There have been two previous ‘phases’ in development of the Common European Asylum System: a first phase of laws mainly adopted between 2003 and 2005, and a second phase of laws mainly adopted between 2011 and 2013. The 2024 package will, if adopted, in effect be a third phase, although for some reason the EU avoids calling it that.

The initial Eurodac Regulation (the ‘2000 Regulation’) was adopted before the first phase of the CEAS, back in 2000, to supplement the Dublin Convention on the allocation of responsibility for asylum applications, which also predated the first phase. The 2000 Regulation was subsequently replaced in 2013, as part of the second phase of the CEAS (the ‘2013 Regulation’).

The 2013 Regulation requires fingerprints of all asylum seekers over fourteen to be taken and transmitted to a ‘Central Unit’ which compared them with other fingerprints previously (and subsequently) transmitted to see whether the asylum seeker had made multiple applications in the EU. (So did the 2000 Regulation: the difference is that Member States since 2013 have to take fingerprints not only of those who apply for refugee status, but also of those who apply for subsidiary protection, a separate type of international protection for those who do not qualify for refugee status; for the definitions, see Part 1 in this series).

Similarly, Member States have to take the fingerprints of all third-country nationals who crossed a border irregularly, and transmit them to the Central Unit to check against fingerprints subsequently taken from asylum seekers. The reason for this is that one of the grounds to determine responsibility for asylum applications under the Dublin rules is which Member State the person concerned first entered without authorisation. The deadline to take the fingerprints is within seventy-two hours after an application for international protection is made, or after apprehension in connection with irregular crossing of an external border.

Member States may also take fingerprints of third-country nationals ‘found illegally present’ and transmit them to the Central Unit to see whether such persons had previously applied for asylum in another Member State. If so, it is possible that the other Member State is obliged to take them back under the Dublin rules. But note that under the 2013 Regulation, it is not mandatory to take and transmit the fingerprints of this group, and the Eurodac system does not store them. Law enforcement agencies and Europol have also been given access to Eurodac data, subject to certain conditions.

For a transitional period under the 2000 Regulation, the data on recognized refugees was blocked once the refugee status of a person was granted. However, the 2013 Regulation unblocked this data. Conversely, the 2013 Regulation reduced the time that the Eurodac system retained data on irregular border crossers (cutting that time from two years to eighteen months).

Unlike most other EU asylum laws, the Eurodac Regulation has not been the subject of case law of the CJEU, so it is not necessary to look at case law to fully understand its meaning.

The UK and Ireland opted in to the two previous Eurodac Regulations, although the 2013 Regulation ceased to apply to the UK (along with the Dublin rules) at the end of the Brexit transition period. Ireland opted out of the proposal for the 2024 Regulation, although it could still choose to opt in to that Regulation after it has officially been adopted. Denmark is covered by Eurodac as part of its treaty with the EU on applying Dublin and Eurodac; there are also treaties with Norway and Iceland, and Switzerland (with a protocol on Liechtenstein) to apply the Dublin rules and Eurodac too.

As with all the new EU asylum measures, each must be seen in the broader context of all the others – which I will be discussing over the course of this series of blog posts. The Eurodac Regulation has always had close links with the EU’s Dublin rules on allocation of responsibility for asylum applications; the new version of the Regulation will have further links with other EU law on asylum, as discussed below.

The legislative process leading to the agreed text of the revised Eurodac Regulation started with the Commission proposal in 2016, as a response to the perceived refugee crisis. A revised version was tabled in 2020, as part of the relaunch of all the asylum talks. The negotiations on that proposal by EU governments (the Council) and then between the Council and the European Parliament, have been convoluted, but have now ended. But this blog post will look only at the final text, leaving aside the politics of the negotiations. My analysis focusses on how the new Eurodac Regulation will differ from the 2013 Regulation, the main details of which were already summarised above.

Basic issues

Like other measures in the asylum package, the application date of the 2024 Eurodac Regulation is two years after adoption (so in spring 2026). However, as discussed below, there will be special rules on the application of the Regulation to temporary protection (ie the application of the EU temporary protection Directive on initial short term protection in the event of mass influxes, so far applied only once, to those fleeing the invasion of Ukraine).

The 2024 Eurodac Regulation first of all expands the list of the purposes of Eurodac – previously support of the Dublin system, with some law enforcement access to data – to include general support for the asylum system, assistance with applying the Resettlement Regulation (on which, see part 3 of this series), control of irregular migration, detection of secondary movement, child protection, identification of persons, supporting the EU travel authorization system and the Visa Information System, the production of statistics to support ‘evidence-based policy making’, and to assist with implementing the temporary protection Directive. The clause on ‘purpose limitation’ related to the use of personal data is far broader, although it is now accompanied by a general human rights safeguard.

Next, the type of data collected is expanded beyond fingerprints to include ‘biometric data’, now defined as including ‘facial image data’. Other types of data will also be newly collected. The obligation to take data is more clearly highlighted in the 2024 Regulation, along with both further safeguards and yet also ‘the possibility to use means of coercion as a last resort’.

The age of collecting data from children will be reduced from 14 to 6. While there will be special safeguards for children, these make uncomfortable reading. For instance, ‘[n]o form of force shall be used against minors to ensure their compliance with the obligation’, and yet ‘a proportionate degree of coercion may be used against minors to ensure their compliance’.

New provisions in the 2024 Regulation aim to secure interoperability with other EU databases – namely the ETIAS travel authorization system and the Visa Information System. Also, the use of Eurodac to generate immigration statistics will be hugely expanded.

Data will still be collected for Eurodac from asylum-seekers and those crossing the external border irregularly, with additional data on changes of status of the data subject. Also, data will now be collected and stored on a mandatory basis (rather than being checked against the database, but not stored, on an optional basis), for irregular migrants, to assist in identifying them. Finally, data will now be collected for the first time as regards four more situations: EU resettlement under the new Resettlement Regulation; national resettlement; search and rescue; and temporary protection, under the EU temporary protection Directive. However, the extension to temporary protection cases only applies to future hypothetical uses of the temporary protection Directive – not to those covered by the 2022 application of that Directive to those fleeing the invasion of Ukraine.

Most of this data will be automatically compared to data already in Eurodac. Data on asylum-seekers will be stored (as before) for ten years; data on irregular border crossers will now be stored for five years, rather than 18 months; and there are varying periods of storage (usually five years) for data newly collected under the 2024 Regulation. However, for temporary protection cases, the storage period is linked to the period of temporary protection under EU law, which is currently three years maximum. As before, data will be erased in advance if the person concerned obtains citizenship of a Member State, but not (for irregular border crossers) if they leave or obtain a residence permit. Conversely, data on those who obtain international protection will be kept for the usual ten year period, rather than (as before) deleted three years after obtaining protection.

Finally, as for data protection, the huge increase in data being collected is regulated by largely the same standards as before (adapted to include the collection and comparison of facial images, as well as the collection of data on security risks), except it is now possible to transfer data to non-EU countries for the purposes of return.

Comments

There was no Commission impact assessment specifically for the amendments to the Eurodac Regulation, and the rationales for the amendments offered in the preamble to the Regulation are rather sweeping. However, there is more detail in the explanatory memoranda to the Commission’s proposals. The 2016 proposal argues for Eurodac to be used not just to facilitate application of the Dublin system, but also as a tool for application of immigration control more broadly. In the Commission’s view, this justified the use of the system to identify those who were staying irregularly – including more comparisons of data. Collecting data on younger children was justified on grounds of safeguarding, to trace parents if they were separated. The collection of facial images and other new types of data was justified on grounds of facilitating identification. Data on relocation should be collected in order to transfer an asylum seeker to the correct Member State under the Dublin rules. The ten year period of retaining asylum seeker data, even if a claim was successful, was justified in case those with status moved without authorization and had to be returned to the Member State responsible. A longer period of retaining data of border crossers, without advance deletion in as many cases, was justified in case it was necessary for return purposes.

As for the revised 2020 proposal, the Commission argued that it was necessary to be consistent with other new rules on search and rescue, resettlement, changes to the main Dublin rules, screening, listing rejected applications (so that the rules on repeat applications could be applied), and internal security risks (because this rules out relocation under the Dublin rules).

Much of these rationales – which in any event are not based on detailed statistical analysis, in the absence of a specific impact assessment from the Commission (a vague staff working document does not contain any further detail) – can be questioned. Was it necessary to include future temporary protection cases, given that an ad hoc solution was found for the current use of the temporary protection directive? In particular, was it necessary to include such cases, considering the original rationale of Eurodac, if (as in the current use of temporary protection) the Dublin rules are de facto disapplied to temporary protection beneficiaries?

Given that the system is extended to temporary protection cases, why does the logic of a short period for retaining data in such cases not apply more broadly? Or at least, why is the logic of retaining data on resettled persons for five years – because long-term residence status is likely then – not applied equally to other people with protection status, or a residence permit? (The idea – raised during negotiations – of deleting data once people obtained long-term residence status was unfortunately dropped). This is a subset of the more general flaw with the whole package of amendments: the determination to strengthen the application of negative mutual recognition (ie Member States recognizing each others’ refusal of applications), without strengthening positive mutual recognition (recognizing the successful applications in other Member States) in parallel, and without considering the cases where those with protection status have a justified reason to move to another Member State (see the threshold set out in the Ibrahim judgment, for instance), or the prospects of long-term residents using their right under EU law (the long-term residents' Directive) to move to another Member State if they meet the criteria to do so. Finally, there is no rationale of using the Eurodac system for returns in light of the expansion of the Schengen Information System to the same ends (expanded data on entry bans, data on return decisions), which is already applicable in practice.

Overall then, the new Eurodac system will collect much more data, on many more people, for far more purposes, and for much longer – and with an inadequate explanation for many of these changes.

Climate case against ING: what does it mean for monetary policy?

 

Annelieke Mooij, Assistant Professor, Tilburg University

Photo credit: Sandro Halank, via Wikimedia Commons

The Dutch climate organization “milieudefensie” had threatened to start a case against the Dutch ING bank. The 14th of February 2024 the ING has responded that it will not give in into the demands of the climate organization. Hence making it highly likely that the climate policy of the ING will face legal challenges. Prima facie the case seems without EU relevance as it concerns a national climate organization suing a national bank. Though the case may seem to lack European relevance, the opposite is true. The decision by the Dutch judiciary may have serious European consequences. In particular for the Monetary Union and may even bypass the independence of the ECB.

Milieudefensie v. ING

The climate organization (plaintiff) asks the court to order the ING to take four concrete steps. The first is to align its climate policy with the target of 1.5C as stipulated by the Paris Agreement. The second demand is that the ING reduces its own emissions by 48%CO2 and 42% CO2e by 2030. Third that it stops financing large corporate clients who have adverse climate impacts. The fourth and final demand is that ING engages in discussion with the plaintiff about how to substantiate these demands. The demands made by the plaintiff are serious claims. Raising the question of the likelihood these demands are met by the Dutch court.

Whilst the court summons is not yet finalized it is likely that the plaintiff will refer to two earlier cases. The first is to an earlier case won against the Dutch state. In the Urgenda case the Dutch Supreme Court ruled that the state had to reduce its emissions in accordance with the Paris Agreement. The Supreme Court did not state how the state had to comply, simply that it had to comply. The case gave a strong message to the state that it had the obligation to meet the climate agreements. Urgenda provided the foundation for the second case.

The second case that the plaintiff will likely reference is that of Milieudefensie v. Shell. This case still has an appeal pending. The case concerned the climate responsibilities of Dutch oil concern Shell. The judiciary decided that Royal Dutch Shell (RDS) was responsible for the emission reductions of the global shell activities. In this capacity it had to reduce its global emissions by 45% by 2030 in comparison to 2019 levels. This was considered a revolutionary case as it is one of the first where the judiciary recognized climate duties against a legal person.  The legal foundation was article 6:162 of the Dutch Civil Code, this article is a form of tort law. The court considered that the emission reduction plans of Shell were not concrete enough. Shell thereby violated an unwritten duty of care. Prima facie the case against ING therefore looks strong. There are, however, two obstacles to overcome.

The first minor challenge is that of the impact of ING’s financial products on their clients. In the case against Shell the court considered that the mother company RDS determined the policy of the entire group (paraf. 4.4.4). It therefore had the influence to change the companies’ policies and directions. Arguably a bank can have a similar steering influence upon the direction of its clients. In particular the ING may refuse loans intended to buy polluting machines. On the other hand banks can approve loans for investment in greener operations. Loans can thereby have a powerful impact upon the direction of a consumer. Operating credit on the other hand will have a less likely impact on the course of a business. To demand that all financing is discontinued to corporate clients who do not have a climate plan provides a broad interpretation to the duty of care of the banking sector. In particular, as the Dutch judge will have to weigh the right to a clean environment against the right to operate a business.

The second difficulty is that unlike RDS, ING’s emissions (in)directly result from a varied investment portfolio. As stated by the response of ING measuring merely the emissions can lead to a negative climate result. An increased investment in heat pumps, increases the emission portfolio of ING but can decrease global emissions. The emissions in the Shell case were the direct result of the company’s own activities. Redirecting its efforts from fossil fuels to sustainable energy will have a positive impact upon the fight against climate change. In length of this argument Ferrari and Landi argue with regard to central banks that investments should be made not by simply investing in the lowest emitters.  Instead of this so-called “best-in-universe” approach, banks should invest in companies that do well within their substitute production group. The so-called best-in-class method of investment. Through this approach global demand can be shifted to green products. Therefore unlike the Shell case the court will have to decide between a blanket reduction of emissions which may have a negative environmental impact, or a best-in-class approach. The difficulty is that the court will then have to provide instructions not on what goals to achieve but rather on how to achieve emission reductions. The methods of achievement has been something the court has refrained from doing in both Shell and Urgenda. The decision on methodology may have a large impact on the future European Central Bank’s purchasing programmes.

 

Impact on the Monetary Union

The right to (private) life codified in the European Convention for Human Rights (ECHR) played a significant role in these cases. Article 52(3) of the EU Charter states that the ECHR provides a minimum level of protection. The CJEU may therefore award a higher level of protection but not lower than the ECHR. The interpretation of the ECHR therefore has a large influence on the fundamental rights protected within the EU Charter of Fundamental Rights.

The judgements of national judges are not binding for the European Court on the Convention of Human Rights (ECtHR). However, when there appears to be a consensus among the majority of members the ECtHR considers there is common ground. The existence of common ground decreases the margin of appreciation for the member states. The case of Urgenda directly involved an appeal to human rights against the state, specifically the right to life (article 2) and private life (article 8). Similar cases have been successfully tried in Ireland and France. The ECtHR is yet to rule on the climate change cases that are pending. There however seems a likelihood of a positive outcome for the plaintiffs. The CJEU will have to consider the scope of these cases and can decide on the same or a higher standard of protection. There is, however, a difference with the case of ING.

The cases against the states directly invoked human rights. In the Shell case the Dutch judge only indirectly applied the fundamental rights when interpreting the duty of care. It will likely do the same in the case of ING. This provides a less strong signal about common ground to the ECtHR that the right to a clean environment includes specific obligations for banks and other legal persons. It will take more national judges to reach similar judgements to provide the ECtHR with to conviction that there is common ground. The court in the Shell case, however, included the in its considerations the UN Guiding principles. These principles create a large common understanding throughout the ECHR members. The states obligation to enforce direct obligations for legal persons through its courts are likely to be accepted by the ECtHR.   If so it cannot be ignored especially by the largest bank in the EU; the European Central Bank (ECB).

The ECB has a tiered mandate. Its primary objective is to obtain price stability which has been defined as keeping inflation under but close to two percent on the medium term. To achieve this goal the Treaty on the Functioning of the European Union (TFEU) has granted the ECB with a high level of independence. This means that neither the EU or national legislators cannot determine or influence how the ECB executes its monetary policy. The ECB is therefore likely to argue that it cannot be influenced as to how it conducts is monetary policy even with regard to climate change. The ECB, however, is not immune from other primary or secondary legislation. In the Olaf case the CJEU considered that the ECB falls within the EU legal framework. Its independence only protects the ECB against political influence when it conducts monetary policy.

In addition to its primary mandate the ECB has a secondary mandate to abide by. This mandate includes “[…]the sustainable development of the Earth”. The ECB has to comply with its secondary mandate if it does not violate its primary mandate. Currently this is interpreted by the ECB to mean that when the ECB has a choice in how to achieve its price stability objectives, the secondary mandate is guiding. The secondary mandate, however, has various goals. Some of these goals can be achieved simultaneously but some are independent or even substitute goals. This makes it currently difficult to pinpoint to the legal obligations of the ECB from the secondary mandate. When it comes to climate change, however, the ECB considers itself bound by the Paris Agreement. In addition the ECB has to abide by the EU Charter of Fundamental Rights. It is however unclear what precise duties these treaties bring to the ECB when it carries out its private sector funding programmes. The ECB states that it is trying to decarbonize its corporate sector portfolio’s by using a method called tilting. The green bonds in the sector are given preference to the brown bonds. The difficulty is that when green bonds run out the ECB will continue by purchasing brown bonds if it considers this necessary for its monetary aim. The case of Milieudefensie v. ING, can provide clear guidance with regard to the ECB’s fundamental right climate responsibilities in its corporate sector programmes.  The Dutch court’s reasoning can provide the balance between a bank’s obligations to climate against the right to operate a business. This reasoning can be incorporated by the ECB.

The ECB makes choices with regard to how (intense) to pursue price stability. These choices should be guided by human rights such as climate change and economic needs. The ING decision can create a guiding framework on how to balance these different interests. However before such guidelines can be considered binding more national cases need to be tried, or the ING case would have to reach the ECtHR. Still quite a road to be travelled.

The Dillon Judgment, Disapplication of Statutes and Article 2 of the Northern Ireland Protocol/Windsor Framework

 

 

Anurag Deb, PhD researcher, Queens University Belfast, and Colin Murray, Professor of Law, Newcastle Law School

Photo credit: Aaronward, via Wikicommons media

Extensive provisions of an Act of Parliament have been disapplied by a domestic court in the UK for the first time since Brexit. That is, in itself, a major development, and one which illustrates the power of the continuing connections between the UK and EU legal orders under the Withdrawal Agreement. It is an outcome which took many by surprise, even though we have argued at length that the UK Government has consistently failed to recognise the impact of Article 2 in rights cases. So here is the story of this provision of the Withdrawal Agreement, the first round of the Dillon case, and why understanding it will matter for many strands of the current government’s legislative agenda.

Article 2 of the Windsor Framework, as the UK Government insists on calling the entirety of what was the Northern Ireland Protocol (even though the Windsor Framework did nothing to alter this and many other provisions), is one of the great survivors of this most controversial element of the Brexit deal. Whereas other parts of the Brexit arrangements for Northern Ireland have been repeatedly recast, the wording of this provision has remained remarkably consistent since Theresa May announced her version of the Brexit deal in November 2018 (although it was Article 4 in that uncompleted version of the deal).

The provision was tied up relatively early in the process. Indeed, it suited the UK Government to be able to claim that rights in Northern Ireland were being protected as part of the Withdrawal Agreement, to enable them to avoid claims that Brexit was undermining the Belfast/Good Friday Agreement of 1998. Although the 1998 Agreement makes limited mention of the EU in general, it devotes an entire chapter to rights and equality issues, and EU law would play an increasing role with regard to these issues in the years after 1998.   

The UK Government made great play of explaining, in 2020, that its Article 2 obligations reflected its ‘steadfast commitment to upholding the Belfast (“Good Friday”) Agreement (“the Agreement”) in all its parts’ (para 1). Even as it appeared ready to rip up large portions of the Protocol, in the summer of 2021, the Article 2 commitments continued to be presented as ‘not controversial’ (para 37). It might more accurately have said that these measures were not yet controversial, for no one had yet sought to use this provision to challenge the operation of an Act of Parliament. In a powerful example of Brexit “cake-ism”, the UK Government loudly maintained that Article 2 was sacrosanct only because it had convinced itself that the domestic courts would not be able to make much use of it.

Little over a month ago, the Safeguarding the Union Command Paper all-but sought to write the rights provision out of the Windsor Framework (para 46):

The important starting point is that the Windsor Framework applies only in respect of the trade in goods - the vast majority of public policy is entirely untouched by it. … Article 2 of the Framework does not apply EU law or ECJ jurisdiction, and only applies in the respect of rights set out in the relevant chapter of the Belfast (Good Friday) Agreement and a diminution of those rights which arises as a result of the UK’s withdrawal from the EU.

Article 2 is a complex and detailed provision, by which (read alongside Article 13(3)) the UK commits that the law in Northern Ireland will mirror developments in EU law regarding the six equality directives listed in Annex 1 of the Protocol and, where other aspects of EU law protect aspects of the rights and equality arrangements of the relevant chapter of the 1998 Agreement, that there will be no diminution of such protections as a result of Brexit. But notwithstanding the complexity of these multi-speed provisions, by no construction can it be tenable to suggest that ‘the Windsor Framework applies only in respect of the trade in goods’.

The Dillon judgment marks the point at which the Government’s rhetoric is confronted by the reality of the UK’s Withdrawal Agreement obligations, and the extent to which they are incorporated into domestic law by the UK Parliament’s Withdrawal legislation. The case relates to the controversial Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, heralded by the UK Government as its vehicle for addressing the legal aftermath of the Northern Ireland conflict. This Act, in preventing the operation of civil and criminal justice mechanisms in cases relating to the conflict, providing for an alternate body for addressing these legacy cases (Independent Commission for Reconciliation and Information Recovery) and requiring this body to provide for immunity for those involved in causing harms during the conflict, has provoked widespread concern within and beyond Northern Ireland.

The Act has been the subject of challenges under the Human Rights Act 1998 and an inter-state action against the UK launched before the European Court of Human Rights by Ireland. In the interest of brevity, however, this post will explore only the challenges under the Protocol/Windsor Framework. This is not the first case to invoke Article 2 (see here and here for our analysis of earlier litigation to which the UK Government should have paid more attention), but this remains the most novel element of the litigation, testing the operation of this element of the Withdrawal Agreement. It is also offers the most powerful remedy directly available to those challenging the Act; disapplication of a statute to the extent that it conflicts with those elements of EU law which this provision preserves.

These requirements are explained by the operation of Article 4 of the Withdrawal Agreement, which spells out that elements of the Withdrawal Agreement and the EU law which continues to be operative within the UK as a result of that Agreement will continue to be protected by the same remedies as applicable to breaches of EU law by Member States. Section 7A of the European Union (Withdrawal Act) 2018 reflected this obligation within the UK’s domestic jurisdictions, as accepted by the UK Supreme Court in the Allister case (see here for analysis). For Mr Justice Colton, his task could thus be summarised remarkably easily; ‘any provisions of the 2023 Act which are in breach of the WF [Windsor Framework] should be disapplied’ (para 527). All he had to do, therefore, was assess whether there was a breach.

The rights of victims are a prominent element of the Rights, Safeguards and Equality of Opportunity chapter of the 1998 Agreement. These rights were, in part, given protection within Northern Ireland Law through the operation of the Victims’ Directive prior to Brexit and, insofar as this EU law is being implemented, through the operation of the EU Charter of Fundamental Rights with regard to its terms. The key provision of the Victims’ Directive is the guarantee in Article 11 that applicants must be able to review a decision not to prosecute, a right clearly abridged where immunity from prosecution is provided for under the Legacy Act. The breach of this provision alone was therefore sufficient to require the application of extensive elements of the Legacy Act (sections 7(3), 8, 12, 19, 20, 21, 22, 39, 41, 42(1)) (para 608):

It is correct that article 11(1) and article 11(2) both permit procedural rules to be established by national law. However, the substantive entitlement embedded in article 11 is a matter for implementation only and may not be taken away by domestic law. The Directive pre-supposes the possibility of a prosecution. Any removal of this possibility is incompatible with the Directive.

The UK Government cannot claim to have been blindsided by this conclusion. They explicitly acknowledged the specific significance of the Victims’ Directive for the 1998 Agreement commitments in their 2020 Explainer on Article 2 (para 13). Moreover, in the context of queries over the application of Article 2 to immigration legislation, the UK Government insisted that in making provisions for victims the 1998 Agreement’s ‘drafters had in mind the victims of violence relating to the conflict in Northern Ireland’. Exposed by these very assertions, the Government hoped to browbeat the courts with a vociferous defence of the Legacy Act (going so far as to threaten consequences against Ireland for having the temerity to challenge immunity arrangements which raised such obvious rights issues).

The strange thing about the Dillon case, therefore, is not that the court disapplied swathes of the Legacy Act. This outcome is the direct consequence of the special rights protections that the UK agreed for Northern Ireland as part of the Withdrawal Agreement. The strange thing is that Mr Justice Colton arrived at this position so readily, in the face of such a determined efforts by the UK Government to obscure the extent of the rights obligations to which it had signed up. In the context of the UK’s full membership of the EEC and its successors, it took many years and many missteps to get to Judicial Committee of the House of Lords applying the remedy of disapplication of statutory provisions which were in conflict with EU law (or Community law, as it then was) in Factortame (No. 2). The Northern Ireland High Court was not distracted from recognising that these requirements remain the same within Northern Ireland’s post-Brexit legal framework when it comes to non-diminution of rights as a result of Brexit.

Indeed, the Court could not be so distracted. As we set out above, once Colton J determined that relevant sections of the Legacy Act had breached the Victims’ Directive, the judge had no discretion in the matter of disapplying the offending sections. This marks perhaps one of the strangest revelations to emerge from Brexit. Disapplication of inconsistent domestic law (of whatever provenance) as a remedy extends across much of the Withdrawal Agreement, covering any and every aspect of EU law which the Agreement makes applicable in the UK. This fact – spelled out in the crisp terms of Article 4 of the Withdrawal Agreement – was nowhere to be found in the 1972 Accession Treaty by which the UK became part of the (then) EEC. This is unsurprising, considering that the primacy of Community law over domestic law was then a relatively recent judicial discovery. In the decades since then, however, the principle of EU law primacy and the requirement that inconsistent domestic laws be disapplied have become a firm and irrevocable reality. Small wonder then, that the UK Government accepted it as a price to pay for leaving Brussels’ orbit without jeopardising the 1998 Agreement – no matter how it has since spun the notion of “taking back control”.

Where the government might have its own interests in attempting to obscure the clarity of Article 2 and its attendant consequences, Dillon is by some measure a wake-up call for Westminster. The report of the Joint Committee on Human Rights’ scrutiny of the Bill which became the Legacy Act contained no reference to the Windsor Framework, notwithstanding consistent work by the statutory Human Rights and Equality Commissions in Northern Ireland (the NIHRC and ECNI) to highlight the issue. Dillon marks not only some of the most extensive disapplication of primary legislation ever enacted by Parliament, but also the first such outcome after Brexit. But Dillon is only the beginning. It will be followed in the weeks to come by a challenge to the Illegal Migration Act 2023 by the NIHRC, where there are clear arguments that relevant EU law has been neglected. The Government, and Westminster in general, have not woken up to the legal realities of the Brexit deal. Dillon makes clear that Parliament needs to pay far greater attention to the Windsor Framework; not as a legal curio that only occasionally escapes its provincial relevance, but as a powerful source of law which impacts law-making and laws which are intended to apply on a UK-wide basis.