A new EU Body for Ethical Standards: Final destination or important interim step?

Markus Frischhut, Jean Monnet Professor (EU law, ethics and values) at Management Center Innsbruck, Austria and Adjunct professor at ‘Alma Mater Studiorum - Università di Bologna’, Italy

Art credit: William Hogarth, An Election: the Polling

 

As ECJ President Koen Lenaerts aptly confirmed in a paper on “mutual (yet not blind) trust”, “[i]t is said that ‘[t]rust takes years to build, seconds to destroy and forever to repair’”. For many, the European Union (EU) is not only geographically, but also emotionally very distant. In addition, various scandals have hampered trust in the EU. These scandals affected various institutions, such as the European Commission (e.g., Dalligate, Barrosogate and Oettigate), or recently the European Parliament (e.g., Qatargate). In the EU, we can identify an increasing reference to ethics (and morality) since the 1990s. In 2020 the author elaborated a study commissioned by the European Parliament, which suggested an ‘Independent Ethics Body’ (IEB). These suggestions were based on an analysis of the status-quo of ethics, integrity and transparency rules in EU institutions, etc. In June 2023 the European Commission published a proposal for the creation of an interinstitutional Ethics Body, the ‘Interinstitutional Body for Ethical Standards’ (IBES). Now we see the outcome of the negotiations between the EU institutions (see, for example, for the European Parliament), which shall be formally signed mid-May 2024. In other words, we now have a body for ethics in EU institutions and not an independent ethics body advising for example the European Commission on current policy topics with ethical implications, as in case of the ‘European Group on Ethics in Science and New Technologies’ (the EGE; equipped with a new mandate in 2021).

Current proposal

Ethics rules need to be defined and then enforced. The 2020 IEB study carried out a legal comparison covering France (the ‘Haute Autorité pour la transparence de la vie publique’ [HATVP]), Ireland (Bill for a Public Sector Standards Commissioner) and Canada (Conflict of Interest and Ethics Commissioner [CIEC]). In terms of enforcement, the French HATVP and the Canadian CIEC stand out as best-practice standards. But even amongst EU institutions, different approaches can be identified. An analysis of enforcement powers of the IBES is quite short, as there are none. Art 6(3) of the Inter-Institutional Agreement (IIA) on the IBES (IBES-IIA) states that it shall “not be competent as regards the application of a Party’s internal rules to individual cases”. This is a major issue, as rules on paper that are not properly enforced (‘walk the talk’) can even backfire in terms of public trust. In addition, a self-regulatory approach is a major shortcoming that was addressed by the European Parliament itself (European Parliament, recital J; European Parliament, recital C).

Another question is, who is covered? The 2020 study had focussed on the EU institutions mentioned in Art 13(1) TEU, and the two ancillary bodies mentioned in paragraph 4 (Economic and Social Committee and Committee of the Regions), plus some others (Ombuds[wo]man, European Data Protection Supervisor [EDPS] and the Euro Group, together with the Euro-Summit). Within these EU bodies, the European Central Bank (ECB) stands out for a more ambitious approach. The new IBES covers all EU (ancillary) institutions covered in Art 13 TEU, with the exception of the European Council (EUCO) and only partially the Council of the EU. Partially, because only the High Representative is covered. Hence, the ministers or not covered and not even the “representatives at ministerial level of the Member State holding the Presidency of the Council”, as suggested by the Commission.

Likewise, the substantive rules that are set-up can be more or less ambitious. Besides that, substantive ethical rules can be developed ex ante and then an EU ethics body can be tasked with further clarification and enforcement, alongside awareness raising, training, etc. However, the main task of the IBES is to serve as a platform for the afore-mentioned parties (Art 13 TEU minus EUCO; partially the Council) “to develop common minimum standards for the conduct of the members of the Parties” (Art 6[2] lit a). This shall happen within the first six months (see Art 8[5]).

Unlike proposed by others, the staff of these Parties is not included, only the members defined in Art 2 (e.g. members of the European Parliament, or of the European Commission). As the task is to harmonize existing standards, similar challenges can arise as in case of harmonization of national law via EU directives. Therefore, the approach taken is reminiscent of ‘minimum harmonization’ in case of EU directives (e.g. Case C‑509/07, Scarpelli), where Member States don’t have to, but can lay down higher standards. Hence, in our context, each Party to the IBES-IIA can “impos[e] higher ethical requirements on its members, in particular in consideration of a specific risk associated with the mandate and tasks of the Party to this Agreement or of its members” (recital 10). At the same time, a Party already having higher standards shall not be obliged to lower their ethical standards (recital 11).

Similar to the EU’s motto (‘united in diversity’), in the application of the IBES-IIA, “full account should be taken of the characteristics and specific status of each Party to this Agreement and its members” (recital 9). This makes sense, as common standards are clearly preferable, while at the same time allowing for differences, where objectively necessary due to different legal settings or standards, especially if foreseen in EU primary law. For example, some years ago, the ECJ derived standards on avoidance of “any conflict of interest” (Case C-130/19, Court of Auditors v Pinxten) out of the obligation of members of the Court of Auditors to “be completely independent in the performance of their duties” (Art 285 TFEU). While conflicts of interest should be included for all Parties (see also below), the rules might need to be tougher or more tailored in case of some Parties.

Amongst the Parties, because of “the independence of the judiciary” (recital 9), the CJEU only participates as an observer. Besides the Parties, the IBES shall be assisted by five independent experts who shall attend all meetings as observers and shall advise the members of the IBES “on any ethical question related to the mandate of the Body” (Art 5 [1]). This task mainly refers to the development of “common minimum standards for the conduct of the members of the Parties” (Art 6[2] lit a). Briefly to mention that the other tasks refer to updates of these standards, exchange of views, “abstract interpretation”, and the promotion of cooperation.

Both the members of the Body (Art 13) and the independent experts (Art 5[3]) have to avoid conflicts of interest. Hence, it is interesting that the topic of conflicts of interest does not explicitly figure amongst the areas to be covered by the common minimum standards (Art 8[2]). The minimum standards shall cover declarations of both financial and non-financial interests (lit a). During the term of office, they shall cover external activities (lit b), acceptance of gifts (lit c) and awards (lit d), as well as rules on activities after the end of the term of office (lit e). Finally, the IBES shall elaborate minimum standards concerning “conditionality and complementary transparency measures” (lit f), under the IIA on the mandatory transparency register, i.e. “the principle whereby registration in the register is a necessary precondition for interest representatives to be able to carry out certain covered activities” (Art 2 lit h leg. cit.).

Coming back to the independent experts, at the beginning in the crucial starting phase external experts are side-lined, as in the first year when the IBES is set up, the “independent experts shall be appointed for a full mandate from amongst the current or former members of the existing internal bodies responsible for ethical questions of the Parties” (Art 22[1]). Moreover, in case they are consulted they can only issue a “confidential and non-binding written opinion” (Art 7[3]), and they only “provide an anonymised and aggregated annual account” (Art 7[4]). Hence, no ‘naming and shaming’.

Legal competence

Could the EU have provided for a more ambitious approach? The answer is, yes. Two arguments that are often invoked against more ambitious rules are the Meroni case-law (starting with Cases C-9/56 and C-10/56; analysed here, pp. 102-107) and the institutional balance. First, the ECJ stated that “the powers conferred on an institution include the right to delegate, in compliance with the requirements of the Treaty, a certain number of powers which fall under those powers, subject to conditions to be determined by the institution” (Case Tralli v ECB, C-301/02 P, para 41). Therefore, a delegation is possible. What is also often overlooked is the fact that Meroni was about a delegation from the High Authority (today: the European Commission) to private entities, whereas here a delegation would take place to an EU body charged with ethical tasks. Other requirements stemming from this case-law (obligation to state reason; nemo plus iuris transferre potest quam ipse habet; no unlimited discretion; etc.) have to be considered, but are no obstacles.

The ‘separation of powers’ was also covered by the ECJ, but rather concerning national situations. Likewise, this concept had been developed by Montesquieu to avoid misuse of power. Similarly, also the ‘institutional balance’ is often invoked as an argument against an Ethics Body. According to the Court, the institutional balance “requires that each of the institutions must exercise its powers with due regard for the powers of the other institutions” (Case C-409/13, Council v Commission, para 64). In case of an ethics body complementing and substantiating EU primary law, the institutional balance can even be seen as an argument in favour of such a body.

A starting point for the substance of ethical rules should be the EU’s common values (Art 2 TEU), supplemented by legal and ethical principles (here, p. 28; here, p. 203). A good example is the above-mentioned link between primary law (e.g. Art 285 TFEU) and the ethical concept of avoiding a conflict of interest. This could be a fruitful combination of legal and ethical requirements. As we know, the ECJ applies a judicial self-restraint concerning the ethical perspective (e.g. Case C-506/06, Mayr, para 38). Besides that, the CJEU’s power enshrined in Art 19(1) TEU (“ensure that in the interpretation and application of the Treaties the law is observed”) shall not be impaired.

In terms of legal bases, Art 295 TFEU (IIA) is the appropriate legal basis for an IIA concluded by the European Parliament, the Council and the Commission. The other parties would have to rely on their ‘procedural autonomy’ and the above-mentioned Meroni-doctrine. However, Art 295 TFEU cannot create legal obligations for third parties (e.g., if one would like to include lobbyists). Art 298 TFEU (sound administration) can only be used for the executive branch of powers, not for the others. Finally, Art 352 TFEU (gap-filling clause) is possible, but very challenging (unanimity in the Council), and the ‘implied powers’-doctrine too uncertain (see also here for more details).

In conclusion, does this IBES-IIA lead to a more ‘Ethical Union’? Certainly, it fits within the step-by-step approach of European integration at large (see also here). One could have also tried to include staff under (Art 2[2]) of the Staff Regulations. At least, the IBES-IIA foresees the sharing of best practices concerning the implementation of staff rules (recital 17). Likewise, more powers on enforcement could have been added (cf. Alemanno, 2021, pp. 54-56). While some could see this outcome as an example of a ‘failing forward’ (here and here), there was presumably the aim to present an outcome before the upcoming EU elections (June 2024) and the compromise reached was probably the price for having so many (eight) EU institutions and advisory bodies on board. As a reminder, only the Parliament and the Commission were initially on board for the transparency register, with the Council only joining in May 2021. Therefore, this new ethics body can be seen as an important step forward, even if further steps can and should follow.

 

Barnard & Peers: chapter 8 (especially also delegation of powers, pp. 217-218) and chapter 9

Hope is like the sun: Court of Justice ruling extends right to family reunification for refugee minors

Chiara De Capitani (PhD) is a linguist agent at the European Commission and member of Amnesty International Belgique francophone’s Sexual Orientation and Gender Identity (OSIG) coordination. The views, thoughts and opinions expressed in this paper are solely that of the author and do not necessarily reflect the views, policy or opinion of the European Commission or of Amnesty International.

Photo credit: Enno Lenze, via Wikimedia Commons

At the time of writing, the European Parliament recently voted in favour of the EU’s New Pact on Migration and Asylum, amidst warnings from over 50 Civil Society Organisations. According to Amnesty International, the agreement is “a continuation of a decade of policy that has led to the proliferation of rights violations in Europe [and] will have devastating implications for the right to international protection in the bloc and greenlight abuses across Europe including racial profiling, default de facto detention and pushbacks”. These agreements for new legislation have been analysed in this blog in several posts (1,2,3) with the post on the new Eurodac Regulation aptly titled “resistance is futile”.

However, “hope is like the sun” and a ruling from the 30th of January reminds us of the judicial lawmaking role the Court of Justice of the European Union can play setting higher human rights standards than the ones negotiated at political level – in this case, on the right to family reunification.

Introduction

Directive 2003/86/CE on the right to family reunification (the “Family reunification directive”) can be seen both as the expression of an “individual right or as a mechanism of migration management” (*). Adopted over twenty years ago after three years of complex negotiations within the Council of the European Union the directive is permeated with discretionary clauses, thereby failing to harmonize the national rules of the member states. Neither the definition of family members beyond the nuclear family nor the conditions for family reunification have been harmonized. However, despite the fact that its transposition into national law has given rise to significant variations between member states, family reunification is one of the main reasons for migration to the Union (representing between 25% and 33% of the total number of first residence permits issued to third-country nationals in the EU since 2008)(*) .

It is against this complex backdrop that the Court of Justice of the European Union (hereinafter “the Court”), sitting as a Grand Chamber, examined various crucial aspects of the right to family reunification for unaccompanied refugee minors in the Landeshauptmann von Wien judgment ruling under review (the present case).

The judgment highlights the need to guarantee the effectiveness of the right to family reunification, by ensuring more favourable conditions for unaccompanied minor refugees. This concerns both the time limits and conditions for benefiting from certain advantages provided for in the directive and the protection of the unconditional nature of the right to family reunification for unaccompanied minors. In the particular circumstances of this case, by requiring the granting of a residence permit to the sponsor's adult sister, who is totally and permanently dependent on the assistance of their parents.

The dispute in the main proceedings

RI (hereinafter “the applicant”) is an unaccompanied Syrian minor who arrived in Austria in 2015 and was granted refugee status in 2017. Three months and one day after this recognition, his parents and his adult sister (CR, GF and TY, hereinafter “the applicants”) submitted applications to the Embassy of the Republic of Austria established in Syria for entry and residence in Austria for the purpose of family reunification with the applicant. At the time of application submission, the applicant was a minor, but reached adulthood during the procedure, leading to the rejection of the applications.

In 2018, the applicants submitted again applications for residence permits for family reunification to the Governor of the Province of Vienna who rejected them on the grounds that they had not been lodged within three months of the date on which the applicant's refugee status had been recognized.

The applicants challenged these decisions before the Vienna Administrative Court (hereinafter “the referring court”). In substance, according to the Court, the questions raised by the referring court concern three aspects of the application of Article 10(3)(a) of the Family reunification directive, which we will examine below.

Deadline for unaccompanied minors and their family to apply for family reunification

Under Article 10(3)(a) of the Family reunification directive, if the refugee is an unaccompanied minor, Member States must authorize the entry and residence for the purposes of family reunification of his or her first-degree relatives in the direct ascending line, without them being dependent on him or her and for as long as they do not enjoy proper family support in the country of origin (conditions laid down in Article 4(2)(a)).

The Court previously clarified in the A and S ruling (para 64) that a third-country national must be considered a “minor” if he or she is under 18 years of age at the time of entering the territory of a Member State and lodging an application for asylum in that State. This is the case even if they reach the age of majority during the asylum procedure and are subsequently granted refugee status. However, the Court also ruled that the benefit of this provision could not be invoked without any time limit and, consequently, the application for family reunification should have been made within a reasonable period of time, such as, in principle, three months from the day on which the minor concerned was recognized as a refugee (para 61 of A and S ruling) .

In the present case, the referring court's doubts essentially concern the application of these time limits during the family reunification procedure instead of the asylum procedure (paras 30 and 31). In other words, the referring court asks, firstly, whether an application for family reunification by an unaccompanied minor refugee can be classified as late if it was lodged during the time period when the refugee concerned was still a minor but reached adulthood during the family reunification procedure. Secondly, whether the time limit of three months from the day on which the minor concerned was recognized as a refugee also applies to cases where he or she was still a minor at the date of the application for family reunification.

As a preliminary point, referring to its previous case law, the Court recalls that linking the right to family reunification of an unaccompanied minor (as provided for in Article 10(3)(a)) to the moment when the national authority officially recognizes the refugee status of the person concerned would compromise the effectiveness of that provision, since its application would depend on the speed with which the application for international protection was processed. This would run counter to the aim of the directive, which is to facilitate family reunification and grant special protection to refugees, in particular unaccompanied minors. It would also violate the principles of equal treatment and legal certainty (paras 32 to 35 and case law cited).

In the light of these considerations, the Court states that, as long as the refugee is a minor, his or her parents may submit applications for entry and residence for the purposes of family reunification with the refugee without being required to comply with a time limit in order to benefit from the more favourable conditions laid down in Article 10(3)(a) (paras 40 to 43).

Conditions required from a minor refugee to exercise the right to family reunification

Under the third subparagraph of Article 12(1) of the Family reunification directive, if an application for family reunification is not lodged within three months of obtaining refugee status, Member States may require the refugee to meet the conditions set out in Article 7, paragraph 1, ie that they have at their disposal “accommodation regarded as normal for a comparable family, sickness insurance for [themselves] and the members of [their] family, and stable and regular resources which are sufficient to maintain [themselves] and the members of [their] family” (paras 63 and 66).

As the applicants' application for family reunification was lodged three months and one day after the sponsor's refugee status was granted, the referring court asks whether Article 10(3)(a) of the Family reunification directive allows a Member State to require an unaccompanied minor refugee or their parent(s) to meet the conditions laid down in Article 12(1) in order to benefit from the right to family reunification (para 62).

In this respect, the Court notes that the scheme of the directive and the Union legislature have provided for two distinct regimes. The first concerns the family reunification of any refugee with the members of his or her nuclear family, pursuant to Article 12(1). In such cases, Member States have the option of requiring the applicant to meet the conditions laid down in Article 7(1) if the application for family reunification is not submitted within three months of the granting of refugee status. Conversely, there is no such requirement where family reunification concerns unaccompanied refugee minors with their parents (para 75).

In the Court's view, this approach by the European Union legislature was prompted by the requirements deriving from the Charter of Fundamental Rights of the European Union (hereinafter "the Charter"), in particular Article 7 concerning respect for family life, and Article 24(2) and (3). These stipulate that in all decisions relating to children, the child's best interests must be a primary consideration, and that it is imperative to take into account the need for a child to maintain a personal relationship with both parents on a regular basis (paras 76 and 77).

As noted by the Court and the Commission, “it is practically impossible for an unaccompanied minor refugee to have [access], for [themselves] and the members of [their] family, [to] accommodation, sickness insurance and sufficient resources […] Likewise, it is extremely difficult for the parents of such a minor to meet those conditions before even having joined their child in the Member State concerned” (para 77).

In the Court's view, imposing compliance with the conditions laid down in Article 7(1) as a precondition for family reunification of unaccompanied refugee minors with their parents would effectively be tantamount to depriving those minors of their right to such reunification, in breach of the provisions of Article 7 and paragraphs 2 and 3 of Article 24 of the Charter (para 77).

Finally, in view of the exceptional circumstances of the case in the main proceedings, “the Member State concerned also cannot require RI or his parents to meet the conditions laid down in Article 7(1) of that directive with regard to the minor refugee’s sister” (para 79).

Granting a residence permit to the adult sister of an unaccompanied minor refugee

What really distinguishes the present case is the Court's recognition of an obligation to grant a residence permit to the adult sister of an unaccompanied minor refugee.

The circumstances of the case are undeniably exceptional: TY, currently residing in Syria with her parents, suffers from cerebral palsy, requiring the use of a wheelchair as well as daily personal care administered by her mother, including assistance with feeding. As TY would not be able to receive this essential care from another family member, her parents cannot leave her alone in Syria (paras 23 and 55).

Therefore, the referring court asks the Court whether it is necessary to grant a residence permit to the adult sister of an unaccompanied minor refugee under Article 10(3)(a) of the Family reunification directive, given that a refusal could result in the deprivation of the right to family reunification between the refugee and his or her parents provided for in that article (para 46). Alternatively, the referring court notes that a residence permit could possibly be granted to the sponsor's adult sister "for compelling reasons relating to private and family life, within the meaning of Article 8 of the [Convention for the Protection of Human Rights and Fundamental Freedoms - hereinafter the "ECHR"]" under Austrian law. Nevertheless, insofar as the right to a residence permit deriving directly from Union law might offer more extensive protection than that conferred by Article 8 of the ECHR, it must be determined whether the applicant's sister is entitled to rely on it (para 25).

As a preliminary point, in line with its previous case law (**)(***), the Court recalls that, in accordance with Article 51(1) of the Charter, Member States must respect the rights and observe the principles laid down therein when implementing Union law, while at the same time encouraging its application. Consequently, Member States have a positive obligation “must not only interpret their national law in a manner consistent with EU law but also make sure they do not rely on an interpretation of an instrument of secondary legislation which would be in conflict with the fundamental rights protected by the legal order of the European Union” (para 48). Consequently, the provisions of the Family reunification directive must be interpreted and applied in conjunction with the aforementioned Article 7 and paragraphs 2 and 3 of Article 24 of the Charter (paras 49-50).

It follows from the foregoing that Article 10(3)(a) confers increased protection on unaccompanied minor refugees on account of their particular vulnerability. Consequently, referring to its previous case law, the Court stresses that this article requires Member States to authorize family reunification of the applicant's first-degree relatives in the direct ascending line, without any margin of discretion being available (paras 51-52).

Therefore, in view of the exceptional circumstances of the present case, the effectiveness of the right to family reunification of a refugee minor with their parents requires that a residence permit also be granted to his adult sister who is totally and permanently dependent on the assistance of their parents (paras 57-58).

Conclusion

The political climate and the complexity of the negotiations that led to the adoption of the Family reunification directive remain the main reasons why the legislator did not review its content, freezing the protection of family reunification to conditions negotiated over twenty years ago (****). On the other hand, as the Charter is a living instrument to be interpreted in the light of current living conditions, the Court's approach of placing its articles at the heart of its examination of the implementation of Union law is of fundamental importance. In this judgment, the Court's interpretation of the principle of effet utile is rooted in the protection of human rights and places the rights of refugee minors at the heart of its thinking.

Ultimately, this judgment helps to give full effect to the right to family reunification for unaccompanied minors, both in terms of procedural rules and conditions, and in terms of its application - to guarantee reunification with parents - to a family member not explicitly covered by Article 10(3)(a) of the Family reunification directive.

In view of the exceptional circumstances of this case, the Court's ruling has no immediate impact on the definition of family members eligible for family reunification with an unaccompanied minor. However, this judgment is part of the Court's search for a fair balance between the need to meet the conditions for family reunification and respect for the unconditional nature of the rights of individuals guaranteed by the above-mentioned directive and might have important repercussions to future rulings.

For example. by analogy, it would be conceivable to apply the Court's reasoning to the recognition of an obligation to grant a residence permit to other family members where this would be the only means of enabling an unaccompanied minor sponsor to exercise their right to family reunification with his or her parents.

Going even further, a similar approach could be considered for two other articles of the Family reunification directive that impose a positive obligation on Member States:

Article 4 (1) which “imposes precise positive obligations, with corresponding clearly defined individual rights, on the Member States, since it requires them, in the cases determined by the Directive, to authorise family reunification of certain members [of the nuclear family] of the sponsor's family, without being left a margin of appreciation” (*****) and

Article 17 on the obligation for member States to “make a balanced and reasonable assessment of all the interests in play, both when implementing the [Family reunification directive] and when examining applications for family reunification” (*****).

In situations where the sponsor’s reunification with their nuclear family would be impossible due to the particular hardship this separation would cause to other members of the family remaining in the country of origin, and in particular where the sponsor’s specific vulnerabilities (including being a refugee and/or unaccompanied minor) warrant the right to family reunification under Article 4 (1), I believe and hope for the Court’s reasoning in the present case might apply in the same way. Paradoxically, unfortunately, exceptional situations of great gravity such as the one in the present case are not so exceptional for refugees.

Given the current political paralysis in this area, it is likely that future developments concerning the right to family reunification will be based on the Court's case law, which will - as in this judgment - pave the way for the legislator.

In the meantime, since the “proliferation of cases” dealt with by the Court since the 2014 Commission guidance for application of the directive, a second guidance note would be warranted: “it would probably be useful for the Commission to produce a communication on Directive 2003/86 restating the Court’s case law. After 20 years, a simple and clear résumé of how the Court interprets the Directive could lead to greater legal certainty and uniform application of the Directive at the national level and, more importantly, it could also help many individuals better secure their rights under the Charter” (******).

(*) On the history, application and previous case law of the Court concerning Directive 2003/86/EC, see: E. Tsourdi, and P. De Bruycker, eds. Research Handbook on EU Migration and Asylum Law, Edward Elgar Publishing, 2022, especially chapters:

E. Tsourdi, and P. De Bruycker, The evolving EU asylum and migration law, Research handbook on EU migration and asylum law, Edward Elgar Publishing, 2022, pp. 1-55 and

G. Kees and T. Strik, Directive 2003/86 on the Right to Family Reunification: a surprising anchor in a sensitive field, Research Handbook on EU Migration and Asylum Law, Edward Elgar Publishing, 2022, pp. 306-326.

(**) See ruling of July 16, 2020, État belge (Regroupement familial - Enfant mineur), Joined Cases C-133/19, C-136/19 and C-137/19, ECLI:EU:C:2020:577, paragraph 33 and previous case law.

(***) It is worth noting that the commented ruling as well as several previous rulings from the Court of Justice that have had a decisive impact on the right to family reunification and, more specifically, the rights of unaccompanied minors, share the same rapporteur: L. S. Rossi. e.g:

État belge (Family reunification – Minor child), C‑133/19, C‑136/19 and C‑137/19, EU:C:2020:577

Bundesrepublik Deutschland (Family reunification with a minor refugee), C‑273/20 and C‑355/20, EU:C:2022:617

Bundesrepublik Deutschland (Family reunification of a child who has reached the age of majority) (C‑279/20, EU:C:2022:618)

(****) This is not insignificant, given that the other instruments relating to migration and protection have been revised, sometimes several times, since they were first adopted. In particular, as noted by . E. Tsourdi and P. De Bruycker, the "New Pact on Migration and Asylum" presented in 2020 does not propose to amend the Family Reunification Directive. E. Tsourdi, and P. De Bruycker, The evolving EU asylum and migration law, Research handbook on EU migration and asylum law, Edward Elgar Publishing, 2022, p. 50.

(*****) See com(2014)210 final, Communication from the Commission to the European Parliament and the Council on guidance for application of Directive 2003/86/ec on the right to family reunification, pp. 5 and 28.

(******) See: L. S. Rossi, The interaction between the directive 2003/86 and the Charter of fundamental rights of the European Union in the family reunification of a third country national, Freedom, security & justice: European legal studies: 1, 2024, p. 37. 

Restoring the Borderless Schengen Area: Mission Impossible? Summary of a new report

 

Professor Steve Peers, Royal Holloway University of London

Photo credit: BlueMars, via Wikimedia Commons

My European Policy Analysis report on the amendments to the Schengen Borders Code, published today by the Swedish Institute of European Policy Studies (SIEPS), assesses the likely impact of the recently agreed amendments to the Schengen Borders Code. This blog post is a summary of the main points of the report.

The context of the report is the concerns about the reintroduction of border checks at the internal borders of Schengen countries in recent years for long periods by a number of Member States. The EU has embarked upon a strategy to ‘save Schengen’, in part by amending the Schengen Borders Code to change the rules on internal border checks (among other changes), but also by agreeing major changes to EU asylum law alongside a number of other measures, for instance in the area of further police cooperation. The amendments to the Borders Code, along with most of the other proposals (including the asylum law changes), have now been agreed (on the asylum law changes, see the series of analyses on this blog beginning here). The report assesses the details of the Border Code amendments in the broader context, analysing whether they are likely to ‘save Schengen’ and whether they raise human rights concerns in the process.

Introduction 

The Schengen system, initially in the form of the Schengen Convention agreed in 1990 but largely replaced by EU measures since, is intended to abolish internal border checks between (most) EU Member States, as well as four associated non-EU countries. This abolition is linked to harmonised checks on external borders with non-EU countries, a common short-erm visa policy for non-EU visitors, and a Schengen Information System listing non-EU persons to be denied entry and objects and persons to be stopped or tracked.

The Schengen Convention rules on internal and external borders are now set out in an EU Regulation known as the Schengen BordersCode, the most recent version of which dates back to 2016. Although the Code does not abolish internal border checks absolutely, their reimposition is meant to be strictly limited. Nevertheless, there have been many resorts to internal border checks in recent years, in particular due to concerns about migration control and security.  

The response has been a plan to ‘save Schengen’, in particular by means of amending the Borders Code along with other changes to EU law. To what extent will the recently agreed amendments achieve that end – and do they raise human rights concerns in attempting to do so?

Internal Border Controls

The report details the current practice of Member States, which as noted already has entailed recent frequent resort to border checks for long periods. It then describes the current legal framework, including the case law.

In particular, the case law has taken a mostly deferential approach to Member States imposing checks on the territory near borders, as an exercise of ‘police powers’, if this does not have an ‘effect equivalent to border checks’.  According to the CJEU, it is sufficient if there are some safeguards in place to ensure that such checks are targeted, even if their purpose is to combat irregular migration.

The current Borders Code allows internal border checks as such for up to 30 days, or for a longer period if the duration of the relevant event is foreseeable, in the ‘event of a serious threat to public policy or to internal security’; but the ‘scope and duration’ of the reintroduced checks ‘shall not exceed what is strictly necessary to respond to the reintroduced checks’. The reintroduction of controls may be continued for further renewable periods of up to 30 days, ‘taking into account any new elements’. But the maximum time to reintroduce border controls is six months, or two years in ‘exceptional circumstances’, where there is an EU-wide threat (this was triggered in response to the refugee crisis, but the two year period has expired).

According to the CJEU’s judgment in NW, interpreting these provisions strictly as a derogation from the general rule of abolition of border controls, the six-month time limit on the reintroduction of internal border controls that applies where there are no extraordinary circumstances could only be triggered again where there was a serious new threat.  There are more specific rules, depending on whether the reintroduction of border checks is foreseeable, urgent, or constitutes ‘exceptional circumstances’

New Amendments

The recently agreed amendments to the Borders Code, likely to be formally adopted later this spring and apply soon after, aim to address Member States’ concerns. They address a number of issues besides internal border controls, although some of those other issues are related to the broader challenges facing the Schengen system, for example changes to the Borders Code as regards border surveillance, and rules on responses to future public health crises such as the covid pandemic.

This report looks in more detail at the changes on four key issues: the instrumentalization of migrants; the definition of border checks; fast-track returns to other Member States, and the reintroduction of border controls.

Cases of instrumentalisation

The ‘[i]nstrumentalisation’ of migrants is defined (by cross-reference to a recently agreed asylum law, discussed here) as ‘where a third country or a hostile non-state actor encourages or facilitates the movement of third country nationals or stateless persons to the external borders or to a Member State, with the aim of destabilising the Union or a Member State, and where such actions are liable to put at risk essential functions of a Member State, including the maintenance of law and order or the safeguard of its national security’.

The preamble clarifies the definition further, stating that ‘[s]ituations in which non-state actors are involved in organised crime, in particular smuggling, should not be considered as instrumentalisation of migrants when there is no aim to destabilise the Union or a Member State’. Furthermore, ‘[h]umanitarian assistance should not be considered as instrumentalisation of migrants when there is no aim to destabilise the Union or a Member State’.

The amendments provide that ‘in particular’ Member States can temporarily close border crossing points or limit their opening hours in instrumentalisation cases. However, any limitations must be ‘proportionate’, and must take ‘full account of the rights of’ those with free movement rights, non-EU citizens with a legal right to reside, and non-EU citizens ‘seeking international protection’. The revised code will also have a new rule, subject to the same guarantees, that ‘Member States may, where a large number of migrants attempt to cross the external border in an unauthorised manner, en masse and using force, take the necessary measures to preserve security, law and order’.

Defining internal border checks

The agreed amendments, taking account of the case law, take a deferential approach to the exercise of police powers on the territory, including in border zones and for the purpose of immigration control, along with checks on public health grounds.

Fast-track returns

A new clause will provide for the fast-track transfer to another Member State of non-EU citizens ‘apprehended in border areas’, where the non-EU citizen was ‘apprehended during checks involving the competent authorities of both Member States within the framework of bilateral cooperation’, which may include ‘joint police patrols’; and ‘there are clear indications that [they have] arrived directly from another Member State’, as further explained, if it is ‘established that the third‑country national has no right to stay on the territory of the Member State in which he or she has arrived’.

However, this process cannot be applied to people with international protection, or to applicants for asylum; according to the preamble, the Dublin rules (which are themselves about to be revised) ‘should apply’ to asylum seekers.

Where the new fast-track transfer rules will apply, as a derogation from the usual obligation in the EU Returns Directive (the law which sets out general rules on irregular migration) to issue a return decision, the Member State which stopped the person may transfer them immediately to the Member State from which they arrived ‘in accordance with’ a process set out in a new Annex to the Code. This Annex will require the authorities to give reasons for the transfer by means of a standard form handed to the person concerned. There will be a right to appeal the transfer, but it will not have suspensive effect, and in the meantime the person concerned will be transferred within 24 hours.

The reintroduction of internal border checks and controls

There will be a series of amendments to the existing rules on reimposing internal border checks in the Borders Code. In particular, the rules on reintroducing border controls in cases requiring ‘immediate action’ will be amended, referring instead to ‘unforeseeable’ events, and allowing border controls to be reintroduced for a one-month period with extensions up to three months, instead of the current ten days with extensions up to two months.

In ‘foreseeable’ cases, national decisions to reintroduce internal border checks could, under the agreed text, be renewed and apply for a maximum period of two years, rather than six months at present – although in a ‘major exceptional situation’, a Member State could in future also apply two further extensions of six months each.

In the event of a public health crisis, internal border checks can be indefinitely renewed for six-month periods. The current ‘exceptional’ procedure for border checks for up to two years due to an EU-wide crisis will remain without amendment.

Assessment and conclusions

The report notes that in part the changes will entrench the status quo, because they either take account of the case law issued beforehand or while the proposal was under negotiation (on checks on the territory and on public health).

But some of the agreed amendments are genuinely new, most notably fast-track returns of irregular migrants (although not asylum-seekers) between Member States, longer renewals of national internal border control, potentially indefinite border controls on public health grounds (if authorised by the Council), and the instrumentalisation of migration. In effect these amendments circumvent CJEU case law as regards the application of the Returns Directive when border controls are reintroduced (for instance, the recent ADDE judgment), which as it stands prevents the instant return of non-EU citizens to other Member States.

As for the new provisions on instrumentalization, could they circumvent the case law requiring the application of asylum law in such cases? At first sight, the prospect of closing border posts might evade the obligation to consider asylum applications, by making them impossible to  lodge. However, applications might still be lodged by those entering illegally, and in any event the prospect of closing border posts will be explicitly subject to a requirement to take full account of the rights of asylum-seekers. Member States’ power to take ‘necessary measures’ to respond to entry by force will also be subject to this requirement. Also, the entire Borders Code is ‘without prejudice’ to the rights of refugees and asylum-seekers. It requires Member States to act in ‘full compliance’ with the EU Charter, the Refugee Convention, and ‘obligations related to access to international protection […] in particular […] non-refoulement’ in both cases. Therefore there is no plausible argument that the new provisions will legalise illegal ‘push-backs’ by Member States (see both ECHR case law and CJEU case law on this). 

The changes to the rules, for instance allowing for longer periods of legally authorised reintroduction of border controls, raise the question of how limited these controls will be in practice. There are no specific benchmarks available for the abolition of reintroduced border controls, and even if there were it is likely that such abolition – like the extension of the Schengen zone itself – would be determined by political rather than legal factors; it might be more difficult politically to abolish internal border checks the longer they have been applied. While there are legal constraints on the maximum time limit of the reintroduction of those controls, as recently emphasised by the CJEU, it might be wondered – in light, for instance, of frequent allegations of illegal push-backs at the external borders, and the current apparent practice of exceeding the current time limits anyway – whether Member States are sufficiently concerned to observe the rule of law in this field.

Nevertheless, the report concludes that it might be useful to attempt to introduce such benchmarks, at least politically, if the intent is to give an impetus to the aim of ending internal border checks across the Schengen area. It also makes the case for the Commission to produce guidance to ensure that the application of the rules on external border controls are consistent with human rights and asylum law obligations, taking account of case law of the CJEU and the European Court of Human Rights.

High Trust Arrangements in a Low Trust Context: The Rwanda Policy’s impact on the Common Travel Area

 

 

Professor Colin Murray, University of Newcastle, and Professor Steve Peers, Royal Holloway University of London

Photo credit: Zairon, via Wikimedia Commons

Introduction

The latest spat between the UK and Ireland over the knock-on consequences of the UK’s Rwanda policy exposes the tangled web of EU law and Common Travel Area (CTA) arrangements which now cover the interactions between both countries’ immigration policies. This post considers these interactions and proposals of the Irish Government to legislate in light of the Irish High Court decision in A v Minister for Justice.

The Realities of the CTA post-Brexit

The CTA has been a remarkably durable feature of relations between the UK and Ireland for over a century. In the immediate aftermath of a bloody war of independence, both countries recognised the mutual benefits of facilitating people moving across their new borders. And even at the height of the Brexit referendum campaign, pro-Brexit campaigners lined up to downplay any concerns around the land border because the CTA would continue after Brexit. Even if it was not, of itself, capable of ensuring an open border on the island of Ireland, the CTA was generally accepted as providing an important ongoing element of UK-Ireland relations. This always underplayed how difficult it was going to be to make these arrangements work post Brexit.

The CTA arrangement has been operable for so long on the basis that it works on two levels; unrestricted movement can take place between the parts of the CTA because each part enforces broadly comparable external rules of entry. For decades, the two states aligned their immigration policy and enforced a shared list of excluded individuals. After both joined the EEC at the same time, these arrangements were augmented by a range of EU law, but Ireland and the UK continued to jointly operate opt outs to let them maintain distinct elements of immigration policy and to provide more legal entitlements to each other’s citizens than they did to other EU citizens (see here).

Post Brexit, the immediate concern was over the UK’s commitment to the CTA. Once Brexit happened, the common external arrangement would no longer be operative, because EU citizens could continue to move freely into Ireland (whereas they would face new restrictions on moving directly to the UK). They could, however, then use the CTA to move into the UK, thereby circumventing the UK’s new immigration policy.  UK ministers, however, remained confident that they could deal with this issue by immigration enforcement away from the border (by requiring banks, landlords, etc to require individuals provide proof of status before accessing services). They therefore signed up to a new CTA deal with Ireland in 2019.

The latest spat in post-Brexit relations between the UK and Ireland, however, involves the necessary corollary of some of the concerns being raised before Brexit took effect. Once the UK set about tightening its restrictions on immigration, and particularly abandoning safeguards around refugees that it had implemented under EU law, would there be a displacement effect as people turned to Ireland instead to process asylum claims. This led to the claims by Ireland’s Justice Minister, Helen McEntee, that not only was there a sharp rise in asylum applications in Ireland in recent months, that 80% of new applicants were now crossing the land border from Northern Ireland. There has not been any evidence published to support this figure (a fact emphasised by some coalition government ministers from other parties, perhaps more alive to the consequences of ramping up these tensions for the CTA).

Groups like the Irish Refugee Council have pointed out that simply because the number of in-country applications has risen, this does not mean that all of those individuals have crossed the land border (people in the country on a different immigration status can make decisions to apply for asylum on the basis of a change in the circumstances of their home country, for example). But the impression that the UK Government’s Rwanda policy has had a direct knock on impact on Ireland, which needs to be addressed, has become central to ministerial thinking.

The position in Ireland

EU asylum law framework

The problem for Ireland is how to enforce returns to the UK, especially in light of the legislation closing off of routes to claim asylum in the UK. The starting point is that Ireland is bound by aspects of EU asylum law, having exercised the possibility to opt in to parts of it. In particular, Ireland opted into the first phase asylum procedures Directive, adopted in 2005, but not the second phase asylum procedures Directive, adopted in 2013 (the ‘2013 Directive’), both of which contain slightly different rules (optional for Member States) on ‘safe third countries’ – ie countries that asylum seekers could arguably make their applications in instead, other than their countries of origin or the country where they are applying now.

The ‘safe third country’ rules in the Directives refer to non-EU countries. If the argument is that the asylum seeker should have applied in an EU Member State or a Schengen associate (Norway, Iceland, Switzerland, Liechtenstein), a different set of rules (the ‘Dublin rules’) apply instead, which determine in detail which Member State is considered responsible for the application, how transfers of asylum-seekers to give effect to the responsibility rules work, and what rights asylum-seekers have to challenge the potential transfers. Ireland has opted in to the current version of those rules – the 2013 version of the Dublin Regulation, known as ‘Dublin III’ – which states that rather than apply those rules to transfer an asylum seeker to another Member State which is responsible, a Member State can choose (as an option) to send an asylum seeker to a non-EU country instead, in accordance with the ‘safe third country’ rules in the 2013 Directive. (One way for Ireland to get around difficulties sending asylum seekers back to the UK would be to revert to the Dublin rules and try to send more of them back to other Member States under those criteria; but that will not always work, for instance because there may not be enough evidence to apply those rules, or the responsibility for the Member State which they first entered illegally to deal with the asylum-seeker may have timed out).

Ireland intends to opt in to the 2024 versions of the Dublin Regulation and the procedures law – which will now become a Regulation – after they are formally adopted, which is scheduled for May 14 (on the details of the new Regulations, see here and here). The procedures Regulation will change the ‘safe third country’ rules again. However, this will not have an immediate impact, since these new Regulations will not apply until mid-2026. So the focus here is the current law.

According to the recent Irish High Court judgment, Ireland had ‘safe third country’ rules at several points previously, but reintroduced the possibility in 2020, when an omnibus law on Brexit amended the International Protection Act 2015 to provide again for ‘safe third countries’ to be designated. Obviously this legal change had the UK in mind – given that the Dublin rules ceased to apply to the UK at the end of 2020, when the Brexit transition period expired. Indeed, the Irish government promptly used these new powers to designate the UK as a ‘safe third country’.

EU ‘safe third country’ rules

The 2005 ‘safe third country’ rules, which apply to Ireland as such, state that a Member State can apply the concept ‘only’ if ‘the competent authorities are satisfied that a person seeking asylum will be treated in accordance with the following principles in the third country concerned:’

a) life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion;

b) the principle of non-refoulement in accordance with the Geneva [Refugee] Convention is respected;

c) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; and

d) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention.

The Directive goes on to state that ‘[t]he application of the safe third country concept shall be subject to rules laid down in national legislation, including:’

a) rules requiring a connection between the person seeking asylum and the third country concerned on the basis of which it would be reasonable for that person to go to that country;

b) rules on the methodology by which the competent authorities satisfy themselves that the safe third country concept may be applied to a particular country or to a particular applicant’, which must ‘include case-by-case consideration of the safety of the country for a particular applicant and/or national designation of countries considered to be generally safe’;

c) rules in accordance with international law, allowing an individual examination of whether the third country concerned is safe for a particular applicant which, as a minimum, shall permit the applicant to challenge the application of the safe third country concept on the grounds that he/she would be subjected to torture, cruel, inhuman or degrading treatment or punishment.

Next, Member States must:

a) inform the applicant accordingly; and

b) provide him/her with a document informing the authorities of the third country, in the language of that country, that the application has not been examined in substance.

Finally, if the non-EU country concerned ‘does not permit the applicant for asylum to enter its territory, Member States shall ensure that access to a procedure is given in accordance with the basic principles and guarantees described in’ the Directive.

The 2013 Directive is similar, except for adding ‘there is no risk of serious harm as defined in Directive 2011/95/EU [the EU Directive on definition of refugee and subsidiary protection status] to the list of principles that must apply in the non-EU country, and providing that the applicant must be permitted to argue that the non-EU country ‘is not safe in his or her particular circumstances’ and ‘to challenge the existence of a connection between him or her and the third country in accordance with’ the Directive.

The impact of designating a country as a ‘safe third country’ is that the application is inadmissible on the merits – on the assumption that it will be considered on the merits in the other country instead, because it is presumed that the asylum-seeker will apply for asylum in that country after being expelled there. The case will be fast-tracked, and it may be harder to stay on the territory in the event of an appeal against the decision than in some other cases.

The Court of Justice has ruled several times on the interpretation of the ‘safe third country’ rules in the 2013 Directive: Cases C-564/18, C-821/19, and C-924/19 and C-925/19 PPU, inter alia ruling that the principle does not apply to transit countries, and that Hungary had not fully provided for the guarantees related to the ‘safe third country’ concept’ required by the Directive in its national law.

The High Court judgment

The Irish High Court judgment ruled that the Irish government’s designation of the UK as a ‘safe third country’ was unlawful; but it did not rule on whether or not the UK was actually safe. This apparent paradox stems from the nature of administrative law, which often concerns itself with whether the public administration followed the correct procedure, rather than the merits of the decision – in part because courts are often more willing to review the procedure which a government applied to take a decision than the merits of that decision, which are seen as to some extent a matter of political discretion. So it’s possible that after a court quashes a government measure as unlawful on procedural grounds, the government could back and lawfully adopt the same decision again, provided that it now does so following the correct procedure. (And to knock on the head another common misconception: a minister taking an unlawful decision does not mean that the minister has committed a crime)

So why was the designation of the UK as a ‘safe third country’ unlawful? Mainly because the Irish law from 2020 providing the powers to designate such countries was not fully consistent with EU law, particularly because it did not provide the guarantees required in the 2013 Directive, which is cross-referenced in the Dublin III Regulation. (As noted above, the CJEU came to a very similar conclusion regarding Hungary’s lack of full application of those guarantees, but oddly the High Court judgment makes no reference to this case law). Also, there had not been a continual review of the position in the UK.

However, this did not mean – despite a popular misconception on this point – that the High Court judgment ruled that the UK was unsafe because of the UK’s Rwanda policy. In fact the judgment is at pains to point out that it was not reaching any conclusion on the Rwanda policy one way or another.

The Irish government’s response

The Irish government has announced plans to adopt legislation to designate the UK as a ‘safe third country’. Depending on the content, this may be sufficient to address the specific reasons why the High Court found that the previous designation was unlawful. But this is not the end of the story, because, as we have seen, the High Court did not get into the merits of whether the UK was ‘safe’ or not, particularly in light of the Rwanda policy, which has moreover developed since. Any fresh legislation could be challenged on those grounds. It’s even possible, if fresh challenges are brought, that an Irish court may want to send questions to the CJEU on this or other aspects of interpretation of the ‘safe third country’ rule. (Incidentally, as the Irish High Court did not rule on the merits of whether or not the UK was 'safe', the Irish government - unlike the UK recently - is not legislating to overturn a court judgment on whether another country is 'safe').

Furthermore, there are other elements to the EU rule, not discussed much in the High Court ruling. As noted above, there must be a ‘connection’ between the asylum seeker and the non-EU country (a point notably missing from the Rwanda policy, on the UK side), and the case law says that mere transit is not enough to create a connection. The two asylum-seekers concerned by the previous High Court judgment had been deemed to have spent enough time in the UK to have a ‘connection’, but that will arguably not be the case for all asylum-seekers who might make their way via the UK to Ireland.

Another point – also scrapped on the UK side in the Rwanda policy – is that the asylum-seeker must be readmitted by the non-EU country. The EU rules thus aim to avoid the very limbo that thousands of asylum-seekers are subject to in the UK, where their cases are inadmissible but with no country willing or obliged to decide their applications on the merits. While the High Court judgment refers to UK willingness to readmit asylum seekers previously (see para 44), the UK has now announced that it is not willing to do so, perhaps because it views the CTA arrangements as not binding. This obviously creates a further issue on the EU side (on the readmission/’safe third country’ nexus in EU law, see the pending Case C-134/23).

Immigration Policy for the whole of the UK?

As well as the Irish dimension to this argument, there is also a Northern Irish aspect. Notwithstanding the current wrangling, many question marks hang over the UK’s policy under the Illegal Migration Act 2023, as extended by the Rwanda Act 2024, and particularly over how they apply in the context of Northern Ireland. As part of the EU-UK Withdrawal Agreement the UK committed to ensuring no diminution of rights and equality protections operative in Northern Ireland law as a result of EU law because of Brexit (Windsor Framework, Article 2). It did so to avoid any claim that Brexit jeopardised the rights provisions of the Belfast/Good Friday Agreement 1998, some of which had come to rely upon EU law in practice. This concession headed off a lightning-rod argument for opposition to Brexit in the Northern Ireland context, and enabled the deal to proceed.

But now that these arrangements are in place, and operative, it means that Northern Ireland has a separate (and higher) floor of rights protections than the remainder of the UK. It is arguable that many aspects of EU law applicable to asylum seekers, and providing protections for them (including the Trafficking Directive), continue in full effect in Northern Ireland post Brexit. As pointed out in previous posts (here and here) the courts have the ability to disapply statutes insofar as they conflict with the Windsor Framework arrangements. In other words, this casts doubt on whether the UK Government’s flagship policy on asylum seekers can apply equally in all parts of the UK. The issue has already been argued before the Northern Ireland High Court with regard to the Illegal Migration Act (judgment is pending). Even if the Rwanda Act closes off many legal challenges, asylum seekers within Northern Ireland are therefore likely to try to use the Windsor Framework to challenge any deportations under these measures for the foreseeable future. 

Conclusions

Amid the tangle post-Brexit arrangements, both countries appear to be talking at cross purposes. For the UK Government, Brexit removed its obligations to comply with the Dublin III regulations and the arrangements thereunder for return of asylum seekers to other EU countries (and it cites the restrictions on it being able to enforce the return of individuals to France post Brexit as evidence of this). For the Irish Government, the Dublin III process might have been used when both countries were EU Member States, but the underlying CTA relationship sprang back into full effect (although conditioned by its own EU obligations) once the overlaying EU law was removed post Brexit. In reality, so much of the CTA relies on shared understandings and reciprocal nods, that there is considerable scope for misinterpretation. Indeed, two countries which were engaging with each other in the close collaborative relationship that the CTA requires might well have been expected to publicly make the appropriate arrangements in advance of Brexit taking effect (but that, alas, is not where UK-Ireland relations are at – see Professor Bernard Ryan here).

Elections loom in both Ireland and the UK, and many politicians in both countries have decided that there are votes to be won in looking tough on immigration. When refugees and asylum-seekers are at issue, however, it is difficult to ignore the fact that both countries process a relatively low number of asylum claims on a European level. But both countries are at loggerheads over policies which increasingly put the CTA arrangements in jeopardy and which seek to ignore the fact that conflict and persecution necessarily create more refugees. Both, it has to be concluded, would like this to be someone else’s problem.

The new EU asylum laws, part 8: the ‘crisis’ Regulation – and conclusions

 

Professor Steve Peers, Royal Holloway, University of London

Photo credit: Sam Zidovetski, via Wikimedia Commons

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 (also known as the 'Asylum and Migration Management Regulation', or AMMR), 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 have looked at all these agreements for new legislation (see the agreed texts here) on this blog in a series of blog posts. This is the eighth and final post in the series, on the Regulation on derogations in the event of a crisis, which derogates from the asylum procedures Regulation and the revised Dublin Regulation. It also includes discussion of the ‘crisis’ rules in the Regulation on a borders return procedure, and conclusions on the asylum package as a whole. 

The previous blog posts in the series concerned the planned new qualification Regulation (part 1), the revised reception conditions Directive (part 2), the planned new Regulation on resettlement of refugees (part 3), the revised Regulation on Eurodac (part 4), the Regulation on screening of migrants (part 5), the revised Dublin Regulation/AMMR (part 6), and the procedures Regulation (part 7).

As noted in the earlier 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 crisis Regulation

The existence of a free-standing Regulation on exceptions in the event of a crisis situation is new, although there is also a Directive on temporary protection in the event of a mass influx (invoked after the Russian invasion of Ukraine) and some derogations to address large numbers of asylum applications in other EU asylum laws. There were also emergency laws on relocation of asylum seekers, to deal with the perceived refugee crisis in 2015, but they expired in 2017.

Ireland has opted out of the crisis Regulation, and the Regulation does not apply to Denmark, although Denmark (and non-EU Schengen associates) will be covered by the crisis rules in the border returns procedure Regulation.

The legislative process leading to the 2024 Regulation began with a proposal in 2020, as part of the relaunch of the proposed EU Immigration and Asylum Pact.

Like most of the rest of the new package, the Regulation will not apply for two years after its entry into force (so likely by spring 2026).  The rationale of the Regulation is that ‘[t]he EU and its Member States may be confronted with migratory challenges that can vary greatly, in particular with regard to the scale and the composition of the arrivals. It is therefore essential that the Union be equipped with a variety of tools to respond to all types of situations’, which are ‘complementary’ to the provisions in the 2024 Dublin Regulation and the temporary protection Directive, ‘which may be used at the same time’. (The original proposal would have repealed the temporary protection Directive)

General Provisions and Scope

Among other things, as noted already, the crisis Regulation provides for derogations from the Dublin Regulation and the Procedures Regulation. However, it ‘shall not affect the fundamental principles and guarantees’ in those Regulations, and the ‘[t]emporary measures’ it provides for are subject to necessity and proportionality, must ‘be appropriate to achieving their stated objectives’, ensure the rights of asylum-seekers and those with international protection, ‘and be consistent with the obligations of the Member States under the Charter, international law and the Union asylum acquis.’ It ‘shall be applied only to the extent strictly required by the exigencies of the situation, in a temporary and limited manner and only in exceptional circumstances’

The preamble emphasises that besides the derogations, other EU asylum law applies fully. Furthermore, the exceptions in the Regulation cannot be invoked by Member States unilaterally: Member States can apply the provisions of the Regulation ‘only upon request and to the extent provided for in’ the Council Decision triggering it.  

As for its scope, the Regulation applies to two types of ‘crisis’ and to ‘force majeure’, as further defined. The first type of crisis is a ‘mass arrival’:

an exceptional situation of mass arrivals of third-country nationals or stateless persons in a Member State by land, air or sea, including of persons that have been disembarked following search and rescue operations, of such a scale and nature, taking into account, inter alia, the population, GDP and geographical specificities of the Member State, including the size of the territory, that it renders the Member State’s well-prepared asylum, reception, including child protection services, or return system non-functional, including as a result of a situation at local or regional level, such that there could be serious consequences for the functioning the Common European Asylum System

The second type of crisis is an ‘instrumentalisation’ crisis, ie Belarus shoving people across the border:

where a third country or hostile non-state actor encourages or facilitates the movement of third-country nationals or stateless persons to the external borders or to a Member State, with the aim of destabilising the Union or a Member State, and where such actions are liable to put at risk essential functions of a Member State, including the maintenance of law and order or the safeguard of its national security.

The preamble qualifies this definition: non-state actors ‘involved in organised crime, in particular smuggling, should not be considered as instrumentalisation of migrants when there is no aim to destabilise the Union or a Member State’; and ‘[h]umanitarian assistance should not be considered as instrumentalisation of migrants when there is no aim to destabilise the Union or a Member State’.

In this context, Member States can ask to trigger the Regulation ‘in particular where there is an unexpected significant increase in the caseload of applications for international protection at the external borders’. And they can ‘only’ use the derogations in any Council decision triggering the Regulation to people ‘who are subject to instrumentalisation and who are either apprehended or found in the proximity of the external border’ – as distinct from internal borders – ‘in connection with an unauthorised crossing by land, sea or air, or who are disembarked following search and rescue operations or who have presented themselves at border crossing points’. But the preamble to the Regulation also states that in this context, ‘effective and genuine access to the international protection procedure must be ensured in accordance with Article 18 of the Charter and the [Refugee] Convention.’

Finally, ‘force majeure’ means ‘abnormal and unforeseeable circumstances outside a Member State’s control, the consequences of which could not have been avoided notwithstanding the exercise of all due care, which prevent that Member State from complying with obligations under’ the procedures and Dublin Regulations. The preamble gives the examples of pandemics and natural disasters.

Process

The process of triggering the Regulation starts with a request from a Member State, which believes it is in a crisis or force majeure situation and so sends a request to the Commission. Following this request, the Commission has two weeks to assess it and adopt a decision determining whether that Member State is indeed in a crisis or force majeure situation. Next, at the same time as adopting that decision, the Commission must, ‘where appropriate’, propose a further Council implementing decision to benefit that Member State; the Council must also act within two weeks.

The Council decision must set out some combination of derogations from EU asylum law, a ‘solidarity response plan’, or an identification of which non-EU citizens are being ‘instrumentalised’.  Also, the Commission can adopt a recommendation urging that Member State to apply an expedited procedure for applications likely to be well-founded, in which case the Member State must decide on those applications within four weeks, derogating from the usual time limits in the procedures Regulation (see part 7).

The Council decision will not apply indefinitely. It can apply only for a year in total: initially three months, with a three month extension confirmed by the Commission; then another Council decision amending it or prolonging it for three months, again with a possible three month extension if the Commission agrees. It is not clear how soon afterwards the Member State could ‘go back to the well’ to ask for another Council decision. The Commission and Council must monitor whether the situation of crisis or force majeure continues to exist, and the Commission ‘shall pay particular attention to the compliance with fundamental rights and humanitarian standards’. The EU Solidarity Coordinator, whose post was set up by the 2024 Dublin Regulation, also plays a role.

Solidarity Measures and Derogations

A Member State facing a crisis situation can request any of the various solidarity measures defined in the 2024 Dublin Regulation (see part 6): relocation (including of recent beneficiaries of international protection), financial contributions (including to non-EU states), and alternative measures. If the relocation pledges fall short, there are a number of rules on offsets (ie other Member States taking responsibility for applicants that they would otherwise have transferred to the Member State in crisis).

As for derogations from other EU asylum laws, the first potential derogation is from the procedures Regulation (see part 7), in any crisis or force majeure situation: Member States can have up to four weeks to register asylum applications, instead of five days. Next, there are a series of possible derogations from the borders procedure in the procedures Regulation: an extra six weeks to apply the procedure (on top of the usual 12 week maximum); an exemption from the obligation to apply the procedure to applicants from countries with low recognition rates; a change to the threshold of the ‘low recognition rate’ rule (either a reduction or an increase to the threshold); or deciding on the merits of all ‘instrumentalisation’ cases in the border procedure, subject to detailed safeguards for minors and families and those with special procedural or reception needs, and protection of ‘the basic principles of the right to asylum and the respect of the principle of non-refoulement as well as the guarantees’ in Chapters I and II of the procedures Regulation.

Third, in the event of force majeure or ‘mass arrival’ crises, the beneficiary Member State can extend a number of deadlines in the Dublin rules, accompanied by a delay in Dublin transfers to that Member State. Finally, in the case of ‘mass arrival’ crises, a Member State may be relieved from certain obligations to take back asylum applicants under the Dublin rules.

Border Return Procedure Regulation

The Regulation on a border return procedure provides that in the event of a crisis, as defined in the crisis Regulation, those who are subject to the border return procedure in that Regulation, because their applications were rejected in the border procedure in the procedures Regulation, and they have no right to remain, can be kept in the border return procedure for an additional six weeks – on top of the ordinary 12 weeks allowed for in the border return procedure Regulation. But as with the ordinary application of that Regulation, if they are not expelled before this extra time runs out, any detention during this period counts toward the detention time limits in the Returns Directive (see further part 7).

The procedural rules in the main crisis Regulation apply – ie a Member State cannot extend the border returns procedure unilaterally, but needs a Council decision authorising it. In that event, though, the extension of the border returns procedure can apply even to those whose asylum application was rejected before that extension was authorised.

Assessment of the crisis Regulation

To what extent, as some seem to believe, can Member States simply end the right to asylum in the event of a crisis or force majeure? In principle, not at all. The derogations in the exceptions and border return procedures Regulations are for a limited time, and only permit delays in registering applications, extensions of the Dublin deadlines, and longer periods to apply the border procedure or border return procedure – neither of which terminate the right to asylum as such. This is reinforced by the provisions of the Regulation that emphasise that other provisions of EU law, along with human rights obligations, still apply when the derogations are used. This is, of course, consistent with the Charter rights and Treaty obligations relating to human rights and asylum, including non-refoulement.

Moreover, the wording of the Regulation suggests that Member States can only derogate from EU asylum law to the extent provided for in this or other EU measures, confirming the prior case law of the CJEU (Case C-72/22 PPU; the Court has also ruled in that and many other cases that the ‘law and order’ clause in Article 72 TFEU does not give Member States carte blanche to derogate from EU asylum law). In particular, the Court ruled that, in situations of instrumentalization, Member States could not simply detain asylum-seekers on the grounds of illegal entry (as it is not a ground for detention under the reception conditions Directive, which remains the case: see part 2) or refuse to consider their asylum applications. The crisis Regulation does not provide for either of those measures as such; but Member States may attempt similar measures indirectly – by detaining people on border procedure grounds, and by closing border posts pursuant to the amendments to the Schengen Borders Code – although that and other measures regarding ‘instrumentalisation’ in the recent Borders Code amendments are subject to human rights safeguards.

Overall assessment of the asylum package

Taken as a whole, the 2024 EU asylum laws are obviously not a shift towards a more liberal legal framework for asylum and migration control. Still less are they a shift toward a radical abolition of border control, as some on the populist right are likely to claim. But nor can they plausibly be characterised, as some on the opposite side of the political spectrum claim, as a de facto abolition of the right to asylum in the EU – at least on paper. Yet it is possible that having been given an inch, Member States will take a mile; and given the record of its approach to the EU/Turkey and Italy/Albania agreements, the EU Commission may do more to help Member States in this goal than to hinder them. In that context, the role of national courts, including their requests for preliminary rulings from the CJEU, may continue to be crucial as regards the interpretation and application of EU asylum law.

Analysing the letter of the new laws (as distinct from how Member States might try to apply them), the moves towards sanctions for secondary movements and greater harmonisation of the law – rationalised as an indirect method of dissuading secondary movements – are consistent across the package. This is a reversal of the usual EU paradigm, which justifies harmonisation of law as a measure to facilitate movement across borders, not deter it.

The sanctions for secondary movement (alongside applying the Dublin rules for longer, and simply locking more people up to prevent any movement at all) entail the (conditional) loss of benefits and access to employment, the reset of the clock on obtaining EU long-term residence status, and (crucially) the deemed withdrawal of asylum applications. There is a deep inconsistency between encouraging greater negative mutual recognition of asylum refusals, while doing very little to promote positive mutual recognition (transfer of protection, mobility of international protection beneficiaries), despite the Treaty commitment to a uniform asylum status ‘valid throughout the Union’. As for harmonisation, it is not complete, but it has gone a long way, with the bonfire of most options for Member States and a lot of additional detail added to ensure that decision-making diverges less.

From the human rights perspective, it is the harmonisation of procedural standards that raises the biggest concerns. As we have seen, the restriction of appeals against Dublin transfers, a number of the deadlines to apply for appeals, and the curtailment of automatic suspensive effect of appeals are all problematic – depending on how the CJEU might approach them in light of its case law on effective remedies. On the merits, there are various default protections against non-refoulement, but it is uncertain how they will work in practice. And while the multiple fast track procedures are all subject to the observance of basic standards on paper, there are doubts about whether that is true in practice – leaving the possibility that the protections of EU asylum law will for many be a form of Potemkin village.

There is nonetheless the risk that, since NGOs have asserted that the new package destroys the right to asylum, some governments may interpret it as a licence to do just that. In this area, the problem with ‘crying wolf’ may not be so much that people stop believing your warnings – but rather that people use your cries as an inspiration to develop a wolf-based asylum policy.