A Further Step to Gender-Sensitive EU Asylum Law: The Case of ‘Westernised Women’

 

Türkan Ertuna Lagrand, Assistant Professor, and Salvo Nicolosi, Senior Assistant Professor, University of Utrecht

Photo credit: Mystslav Chernov, via Wikimedia Commons

 

Gender-based asylum claims have been gaining momentum in EU law. On 11 June 2024, the Court of Justice of the European Union (CJEU) published its most recent judgment in the case of K, L v Staatssecretaris van Justitie en Veiligheid (C-646/21) concerning the interpretation of ‘membership of a particular social group’ under Article 10 (1) (d) of the Qualification Directive with reference to ‘westernised women’ who, because of the identity and lifestyle they have acquired in the host country, namely the Netherlands, fear persecution if they were returned to the home country, namely Iraq. The judgment follows the ruling in WS (C‑621/21) in which the Court last 16 January 2024 recognised that women in a country as a whole may be regarded as belonging to ‘a particular social group’, leading, as analysed here, to the recognition of refugee status.

Following this thread, this post aims to shed some more light on the Court of Justice’s contribution to a more gender-sensitive reading of international refugee law. To this aim, drawing from the judgment in K, L, attention will be paid to the axiological dimension of the concept of ‘equality between women and men’ and its use by the Court for the purposes of constructing the ‘particular social group’ under EU asylum law. A short synopsis of the case will be first provided.

The Factual Background

The judgment is the landing point of a case originating from a reference made on 25 October 2021 by the Tribunal of the Hague. The main proceedings concerned two minor sisters (10 and 12 years old) who left Iraq in 2015 together with their parents who unsuccessfully applied for international protection in the Netherlands. In 2019, the applicants lodged subsequent claims for international protection, which were rejected as manifestly unfounded. On 28 December 2020, they appealed to the referring court in The Hague. At the time of the hearing before the referring court, the applicants had been continuously resident in the Netherlands for over five years and were both still minors. They argued that, due to their long stay in the Netherlands, they have adopted Western norms, values and actual conduct and, because of this, they fear persecution if they were returned to Iraq.

The referring court, therefore, asked the CJEU whether third country nationals who have lived in a Member State for a significant part of their life during which they developed their identity by adopting Western norms, values and actual conduct, may be considered members of a ‘particular social group’ within the meaning of Article 10 (1) (d) of the Qualification Directive, because (applying the definition of ‘particular social group’ in the Directive) they have ‘a common background that cannot be changed’ or characteristics that are ‘so fundamental to identity that a person should not be forced to renounce’ them. (The UN Refugee Convention, as applied in EU law by the EU Directive, defines a ‘refugee’ as someone outside their country of nationality or (if stateless) habitual residence, who is unable or unwilling to avail themself of the protection of that country owing to a well-founded fear of persecution on various grounds, including ‘particular social group’; but unlike the EU Directive, the Convention does not elaborate further on the meaning of the term).

In his Opinion, Advocate General Collins, first of all, rejected the application of the terms “Eastern” and “Western” in the context of moral codes and values as projecting a false dichotomy that constitutes part of a divisive dialogue. He underlined that ‘“the East” and “the West” are vast regions with a multitude of religious traditions, moral codes and values’ making terms such as “a Western lifestyle” or “Westernised women” ‘largely meaningless’. More importantly, by setting the centrality of ‘gender equality’ within EU law, the Advocate General provided a valuable background against which the Court could frame its ratio decidendi.

 

The axiological dimension of gender equality in the Court’s Judgment

In its reasoning, the CJEU reiterates the approach followed in the previous case of WS in which the Court declared the Istanbul Convention and the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) as being relevant treaties under Article 78 (1) TFEU according to which EU Asylum law, including the Qualification Directive, is to be interpreted. In pursuing such an approach, the Court provides a broad and rights-based interpretation of gender equality, explaining that, in light of Articles 1, 3 and 4 (2) of the Istanbul Convention as well as Articles 3, 5, 7, 10 and 16 of CEDAW, equality between women and men includes the right of every woman to be protected from all forms of gender-based violence, the right not to be forced to marry, to choose whether to adhere to a religion, to hold one’s own political views and to make one’s own life choices, especially in terms of education, career or activities in the public sphere.

While relying on these international law sources, the Court contributes to upholding the axiological dimension of gender equality, as ensuing from Articles 2 and 3 (3) TEU enshrining gender equality as one of the EU’s core values and fundamental objectives. In this connection, concurring with Advocate General Collins, it is worth mentioning that EU primary law contains a number of provisions that establish an obligation to mainstream equality and non-discrimination. This is the case of Article 8 or Article 10 TFEU, which, as clarified by the Court itself in VT (C-304/21, para. 34) set out obligations on the Union, not on the Member States. It is equally noteworthy that the Court clarified that the provisions of the Qualification Directive must be interpreted in a manner that is consistent with the EU Charter’s rights, including Article 21 (1) of the Charter, which prohibits any discrimination based on, inter alia, sex.

This axiological dimension of gender equality is especially significant because it constitutes an attempt to frame equality as a ‘central concern.’ In other words, by insisting on the value of gender equality, the Court was not only able to expand the interpretation of refugee law concepts, as will be explained below, but sent a clear message about gender mainstreaming, which has been very challenging to implement, as noted by Timmer.

 

Equality and the construction of the ‘particular social group’

Even if partly calibrating the emphasis permeating the Advocate General’s Opinion, the Court used this axiological framework to acknowledge that women, who have spent most of their lives in the Netherlands, will have been influenced by the value of gender equality. This value constitutes an indelible part of their identity and reflects core values, principles, and fundamental rights deeply rooted in the EU legal tradition.

Accordingly, the Court finds that the fact that a female third country national identifies herself with the fundamental value of equality between women and men can be regarded as ‘a characteristic or belief which is so fundamental to the identity or moral integrity of the concerned person that she should not be asked to renounce it’. According to the Court, the crystallisation of such a fundamental characteristic stems from the exposure to the fundamental value of equality between women and men during a phase of life in which a young woman forms her identity. What is striking is that such a fundamental characteristic is established, as in casu, outside of the country of origin and whilst the applicant was living in the host State, waiting for the asylum application to be processed. Essentially, the Court decides that the applicants are to be seen de facto as sur place refugees, because of their actions outside the country of origin, as clarified by the United Nations High Commissioner on Refugees (UNHCR).

The Court also takes a chance to clarify the relationship with other possible grounds for persecution, such as religion or political opinion. The fact these grounds could also connect with the personal affinity with the value of equality between women and men did not prevent the Court from affirming that these women could be regarded as belonging to a particular social group. As is known, this ground requires two cumulative conditions, namely the identification of a common essential characteristic and that those sharing such a characteristic are seen as “different” from the surrounding society (or part of it). According to the Court, the latter condition is satisfied by the specific circumstances in the country of origin. In this regard, by echoing the argument made in WS, the Court reiterates that ‘it is for the Member State concerned to determine which surrounding society is relevant when assessing whether such a social group exists.’ Nonetheless, even if much more engagement by the Court with issues related to cultural differences could be necessary, the Court seems to indicate that the value of equality between women and men constitutes the element through which the Member States have to assess the perception of the group in the surrounding society.

 

Waiting for the next episode…

This judgment represents another episode of a series of developments towards a more gender-sensitive EU asylum law. In WS the Court has already established that women in a country as a whole may be regarded as belonging to ‘a particular social group’,  thereby ending once and for all the discussion whether the size of the group may prevent such qualification.

In K, L, by recognising that refugee status may be granted to women who identify themselves in the value of equality between women and men, the Court makes a twofold contribution. First, the Court indirectly contributes to gender mainstreaming in EU law by upholding gender equality as a core value of the EU. Following up on the previous ruling in WS, the CJEU uses the Istanbul Convention and CEDAW as ‘relevant treaties’ in the meaning of Article 78 (1) TFEU, to interpret EU Asylum Law. This is an important step in preventing legal fragmentation in the protection of women against discrimination and violence and in creating a coherent framework across legal fields at the international and European levels.

Second, the Court’s ruling in K, L opens the way to the next episode in promoting a more gender-sensitive EU asylum law. A case in point concerns the pending joined cases in AH (C‑608/22) and FN (C‑609/22). The Court will decide whether the requirement for individual assessment may be relinquished for women fleeing the Taliban regime in Afghanistan, as proposed by Advocate General de la Tour in his Opinion, analysed here. Such a case is directly related to gender equality and the systematic discrimination against women. Therefore, the centrality and axiological dimension given to gender equality by the Court in  K, L will play a crucial role in future decisions. It is legitimate to expect that when the circumstances in the country of origin reach a point where gender equality is utterly demolished, as in the case of Afghanistan under Taliban rule, even the need for an individual assessment for the recognition of refugee status could be put aside.

 

The EU’s New Pact on Migration and Asylum: three key arguments

 

 

Lilian Tsourdi, Assistant Professor, University of Maastricht

 *Photo credit:  Délmagyarország/Schmidt Andrea

 

The New Pact on Migration and Asylum is the EU’s latest policy framework on asylum, migration, and border management policies, and the series of legislative proposals that accompany it. Its stated aim is to establish ‘seamless migration processes and stronger governance’. Negotiations on the Pact legislative instruments have been ongoing since September 2020.

 

The European Parliament (April 2023) and the Council of the European Union (June 2023) recently adopted negotiating positions on two key instruments: the Asylum Procedures Regulation (APR) that reforms rules on asylum determination and related rights, and the Asylum and Migration Management Regulation (AMMR) reforming the EU’s system on allocating responsibility for processing asylum claims and establishing a solidarity mechanism.

 

This commentary develops three key arguments: i) while not inherently negative, the Pact’s seamless migration processes are in fact geared to externalising protection obligations thus undermining fundamental rights; ii) the Pact instruments pay greater attention to the policies’ administrative design and carry potential to enhance implementation; iii) the Pact instruments contain a vision of flexible solidarity that remains linked with pressure and misses the mark of fair sharing. 

 

 

Externalization as the red thread

 

Creating seamless migration processes is not inherently negative. This approach acknowledges the intricate links between different policies at the operational level, especially at border areas. The UNHCR had voiced the need for swift identification at the external borders, differentiation between categories of persons making up mixed flows, and referral to an appropriate procedure, as early as 2007 through its so-called Ten Point Plan.

 

Nonetheless, the Pact’s seamless migration processes are in fact geared to externalising protection obligations thus undermining fundamental rights. First, the Pact instruments establish accelerated screening, asylum, and return procedures at the external borders with curtailed procedural guarantees. Combined with logistic constraints (e.g. facilities, access to counsel) they risk undermining migrants’ (procedural) rights. The instruments also blur the lines between deprivation of liberty and restrictions to the freedom of movement and could lead to the propagation of widespread de facto detention.

 

Next, the latest negotiating position of the Council on asylum procedures expands the use and scope of the safe third country concept. Where third counties have either not ratified the 1951 Refugee Convention or retain a geographical limitation to its scope (the latter is the case for Turkey for example) the APR introduces the notion of having access to effective protection instead as part of the third country safety assessment. The provisions contain minimal guarantees to ascertain what effective protection entails, which establish standards below those foreseen by the 1951 Refugee Convention.  

 

In parallel, migration management has been streamlined in the EU’s external relations affecting areas such as development and trade. One way the EU is establishing these linkages is through making access to funding for non-EU countries conditional to cooperation on migration management objectives. The ‘deal’ with Tunisia spearheaded by the EU, Italy, and the Netherlands is the most recent illustration.

 

A greater attention to the system’s governance

 

One of the main ills of the EU’s asylum policy is its lack of attention to the administrative dimension. The current administrative design allocates the vast majority of operationalisation obligations – including financial ones – to Member States with different levels of economic development and different conceptualisations of welfare.

 

The Pact instruments recognise, more adequately than previously, the policies’ implementation dimensions. The Council positions on the AMMR and the APR highlight the opportunities generated through EU funding and EU agencies to implement policy. Nonetheless, the Pact instruments fail to adequately regulate the implications of agency involvement in implementation, while the current design of the EU budget (Multi-Annual Framework 2021-2027) precludes the existence of truly structural forms of EU funding.

 

Next, the AMMR and APR provide a structured approach to define Member States’ relative capacities and to apportion responsibilities in some areas (e.g. implementing border procedures) on this basis. The triggering of solidarity measures is also linked with quantitative and qualitative indicators that, overall, seem to be well suited to provide a holistic picture and assess relative pressure.

 

Finally, the Council negotiating position on the AMMR foresees new permanent governance mechanisms, such as annual High Level EU Migration and Technical Level EU Migration fora that are meant to play pivotal roles in animating inter-state solidarity through pledges. Such permanent structures, mirroring UN level processes, seem more apt to establish effective and predictable inter-state cooperation compared to ad hoc bargaining and emergency-driven responses.   

  

An inadequate vision on solidarity

 

The AMMR largely keeps intact the basic premises of the current ‘Dublin system’, EU’s responsibility allocation system. In brief, Dublin allocates responsibility to the state primarily ‘responsible’ for the person’s presence in the EU. In practice, this should mean the state of first irregular entry to the EU territory is responsible. However, states have sought to evade their Dublin responsibility (by not registering asylum applications for example) and asylum seekers move clandestinely through the EU and evade Dublin procedures.

 

To counter this, the AMMR Council negotiating position aims for a more predictable operationalisation of inter-state solidarity through annual Member State pledges. Nonetheless, solidarity measures, gathered under the framework of a so-called Solidarity Pool, are still meant to be triggered in situations of pressure.

 

The Solidarity Pool will consist of i) relocations (i.e. organised intra-EU transfers) of asylum seekers or recently recognised beneficiaries of international protection or of migrants under a return obligation; ii) direct financial contributions provided by Member States aimed either at boosting Member State or third country capacities in the areas of asylum, migration, or border management; iii) alternative contributions such as capacity building, staff support, equipment etc. All these contributions are meant to be ‘considered of equal value’.

 

In breaking with the past, solidarity has a mandatory character in the sense that Member States are to annually contribute their fair share that will be calculated through a formula that takes to account their population size (50% weighting) and their total GDP (50% weighting). Nonetheless, to appease Member States that opposed relocation, the Pact instruments foresee that Member States retain full discretion in choosing between the types of solidarity measures they will contribute.

 

Overall, the Pact’s approach is likely to miss the mark on fair sharing. While creating permanent governance structures, the Pact continues to link the activation of solidarity with pressure. Thus, instead of establishing structural fair sharing, solidarity remains a palliative solution. Next, it is unlikely that capacity building activities in third states, or sharing of personnel and equipment, will be considered by the benefitting Member States as having equivalent impact on the ground as people sharing.

 

The Long and Winding Road Ahead

 

June 2023 saw one of the deadliest shipwrecks involving migrants seeking to reach the EU’s shores with more than 500 persons missing and presumed dead off the coast of Pylos in Greece. Unfortunately, such unnecessary loss of life is being normalized with IOM reporting over 27,500 missing migrants in the Mediterranean alone since 2014. Action to reform the EU’s migration policies is imperative.    

 

EU official cycles hailed the Council’s early June negotiating position as a breakthrough. The timing of the forthcoming European Parliament elections, scheduled for June 2024, generates additional impetus for the EU’s co-legislators to reach compromise positions in the next months. Nevertheless, political rifts remain intense with Poland and Hungary blocking a joint political statement of Heads of State on migration during the late June 2023 European Council meeting.

 

What promise do the Pact instruments carry? They pay greater attention to policy implementation, governance structures, and the operationalisation of solidarity. Nevertheless, by prioritizing externalization, and by seeking to appease a limited number of Member States that seem to oppose (inter-state solidarity in) migration, they are likely to undermine migrants’ fundamental rights, while missing the mark on fair-sharing. A reform that will fail to deliver results, risks enhancing polarization in migration matters.

 

Legislative developments in the EU echo the UK’s recently adopted Illegal Migration Act. They testify to Europe’s increasingly defensive policy stance in migration. It is to be hoped that future policy will eventually aim at mutually beneficial partnerships with third countries, migrant, and local populations that move beyond Eurocentric frames to meaningfully address the different components of migration processes and aim at co-development. 

 

 

The new EU Resettlement Framework: the Ugly Duckling of the EU asylum acquis?

Emiliya Bratanova van Harten, PhD candidate, Lund University

Photo credit: Voice of America

Many may have been surprised by the deal struck between the European Parliament and the Council of the EU on key migration and asylum instruments on 15 December 2022. More concretely, these are the Reception Conditions Directive and the Resettlement Framework Regulation (the Regulation, the Framework). While this development is welcome in view of the six-year delay in the reform of the Common European Asylum System, it also raises some important questions. This post focuses on the EU Resettlement Framework, as an analysis of some aspects of the Reception Conditions Directive is already available here.

In light of the agreement reached on the EU Resettlement Framework, the main question pertains to the place of legal pathways in the common European asylum space (understood both as acquis and as a sui generis political union), characterized by a focus on externalization. In its policy document entitled “Towards an operational strategy for more effective returns” of 24 January 2023, for example, the EU Commission states that “[a]n effective and common EU system for returns […] can promote safe legal pathways”. Therefore, this post aims to analyze the new EU Resettlement Framework from the perspective of its potential to improve the access to safety and rights of people in need of international protection. Furthermore, it also questions the role of third countries in the resettlement and humanitarian admission processes, as foreseen in the Regulation. To start with, it first provides an overview of the updated Resettlement Framework Regulation, followed by a comparison with the original proposal of 2016. It then asks the question of how the potential adoption of the said Regulation could expand the scope of EU law, if at all, in a way that beneficiaries of legal pathways could enjoy protection under the Charter of Fundamental Rights of the EU (CFREU).

Main components of the new EU Resettlement Framework

Object

The Framework is an instrument of a procedural nature. It sets up “a common procedure together with common eligibility criteria and refusal grounds for admission”, “as well as common principles regarding the status to be granted to admitted persons” (Para. 11). Importantly, it creates neither a “subjective right to request admission or to be admitted by a Member State”, nor a corresponding “obligation on Member States to admit a person under this Framework” (Para. 19; Arts. 1(2) and (2)a).

In addition to resettlement and humanitarian admission, the Regulation foresees the possibility for Member-States (MSs) to undertake emergency admission (Para. 15a; Art. 2). However, resettlement is recommended as the “primary type of admission” and “shall constitute not less than approximately 60% of the total number of the persons to be admitted”, whereas humanitarian and emergency admissions should be of a complementary nature (Para. 20a; Art. 7(2)a).

Scope

The proposed regulation establishes “a Union Resettlement and Humanitarian Admission Framework” which aims to complement “other legal pathways”. It “should offer the most vulnerable third-country nationals or stateless persons in need of international protection access to a durable solution in accordance with EU and national law” (Para. 1b). Therefore, in terms of its scope, the Framework does not address all types of legal pathways, as outlined in the UN Global Compact on Refugees, or GCR (Para. 95), but focuses specifically on resettlement and humanitarian admission, with a focus on vulnerability.

Objectives

Through its efforts to meet the global resettlement and humanitarian admission needs, the Framework aims to: 1. strengthen the Union’s partnership with third countries; 2. show solidarity with and help alleviate the pressure on those countries to which a large number of persons in need of international protection has been displaced; 3. foster those countries’ capacity to improve reception and international protection conditions; and 4. reduce irregular and dangerous onward movements of third-country nationals and stateless persons in need of international protection (Para. 10).

There is a certain degree of similarity between the objectives of the Framework and the objectives of the GCR, of which resettlement and complementary pathways, categorized under the generic term of legal pathways, are an integral part. These are: (i) ease pressures on host countries; (ii) enhance refugee self-reliance; (iii) expand access to third country solutions; and (iv) support conditions in countries of origin for return in safety and dignity (Para. 7). While legal pathways contribute to the first three, it is clear that the Framework has a stronger focus on third countries (which are sources of migration flows), and does not concern itself with the skills of the beneficiaries of legal pathways. On the contrary, one of the aims of resettlement and humanitarian admission, as per the Framework, is to deter irregular migration.

Procedure

The procedure shall consist of five stages: referral (from UNHCR in the case of resettlement, but optional in the case of humanitarian admission), identification, registration, assessment, conclusion on admission and granting of international protection or of humanitarian status under national law (in the case of humanitarian admission only) (Para. 13). The latter point raises the question of applicability of EU law if the protection status granted to the beneficiary of humanitarian admission is regulated under national law, to which I shall return later.

On a more concrete level, on the basis of a proposal by the Commission, the latter shall confer on the Council the implementing power to establish a two-year Union Resettlement and Humanitarian Admission Plan which would:

-          set the total number of persons to be admitted with a breakdown by type of admission (resettlement, humanitarian and emergency admission);

-          state the contributions of each MS in terms of total numbers to be admitted;

-          describe the specific group(s) of beneficiaries of legal pathways, as well as the regions or third countries from which admission would take place (Para. 21).

Importantly, the participation of Member States in the Framework is voluntary and it is up to Member States to define their priorities in terms of items 2 and 3 of the above Plan, which the Commission should have incorporated in its initial proposal to the Council (Para. 22; Art. 1(2)b). Ultimately, item 1 is drawn up on the basis of the respective breakdowns in items 2 and 3, which leaves the Commission with very limited negotiation powers.

The beneficiaries of resettlement and humanitarian admission could be granted international protection before or after arrival in the country of asylum, but the integration-related provisions contained in the Qualification Directive shall start applying upon their arrival to the country of asylum, reconfirming the territorial application of the asylum acquis (Para. 25). At the same time, MSs “should be able to make the participation in […] integration measures compulsory”, but “only if those integration measures are easily accessible, available and free of charge” (Para. 25a).

In order to be eligible, a person in need of international protection should meet a number of cumulative criteria (Art. 5). In order to be resettled, a candidate should qualify as a refugee or as a subsidiary protection status holder as per the Qualification Directive and fall within one of the vulnerability categories, which overlap in substance with the UNHCR resettlement submission categories, as per the UNHCR Resettlement Handbook (p. 243). For the purpose of humanitarian admission, in addition to the above requirements, the beneficiaries should be a family member to a third-country national or stateless person legally residing in the EU or an EU citizen (Art. 5(1)c). The definition of family members is broader than the one contained in the Family Reunification Directive, thus making humanitarian admission primarily a legal pathway for extended family members.

Additionally, the Regulation enlists grounds for refusing admission (Art. 6), which are a combination of the exclusion grounds contained in the Qualification Directive (Art. 12) and part of the risk assessment criteria enshrined in the Visa Code (Art. 21(c)(d)) and in the Schengen Borders Code (Art. 6(1)d and e). If a potential beneficiary of legal pathways falls within one of the latter two, they shall be barred from participating in resettlement and humanitarian admission programmes under the Regulation for a period of 3 years. In addition, there is another list of factors which may be a ground for admission refusal which includes, among others, people who in the past 3 years have refused participation in resettlement or humanitarian admission or have withdrawn their consent; who refuse to participate in a pre-departure orientation programme (on the scope of the programme, see Art. 10(7)c); or “persons in relation to whom Member State cannot provide adequate support that the person needs on the basis of his or her vulnerability” (Para. 6(2)bc).

At the same time, as mentioned, the participating Member States do not have an obligation to admit people in need of international protection falling within the categories above, but instead “may give preference to third-country nationals or stateless persons: 1. with family links with third-country nationals or stateless persons or Union citizens legally residing in a Member State; 2. with demonstrated social links or other characteristics that can facilitate integration in the Member State conducting the admission procedure, including language skills or previous residence; and 3. with particular protection needs or vulnerabilities” (Art. 10(1)a). This discrepancy is telling of the place the potential beneficiary occupies in the admission process: they need to fulfil many eligibility criteria, but MSs may give preference to other criteria (which are integration-related), and are not bound by a requirement to select persons with family links or even with vulnerabilities.

Rights of individual beneficiaries of legal pathways

The beneficiaries have many obligations and very few rights. The referral and matching procedure exemplifies this point aptly. As mentioned, within resettlement, UNHCR makes the referral to the Member State. However, the process of referral of beneficiaries of humanitarian admission does not look as streamlined as in the case of resettlement (Art. 10(1)a). In that case, Member States may request the UNHCR, the European Union Asylum Agency or another relevant international body to refer to them third-country nationals or stateless persons, but may theoretically also identify them themselves. The match between a person in need of international protection and the country X may be contingent on family links and social links, including language skills and previous residence (Art. 10(1)c), but in the absence thereof, the matching process seems rather random. People in need of international protection do not have a say in the selection process and if they do not provide or withdraw their consent to be resettled to a country X, they may forgo their possibility to find a third country solution in the next 3 years. Furthermore, they need to fall within certain categories of people in order to be eligible (to be in need of international protection, to have a vulnerability and family links in the case of humanitarian admission), but they may be selected on the basis of their integration potential, instead. If they do not participate in a pre-departure orientation programme, this may be a rejection ground in the following 3 years.

The above overview manifests the unequal relationship between MSs and beneficiaries of resettlement and humanitarian admission. While the participation of both parties is voluntary, under the updated Regulation, the Member States are allowed to relinquish most of their procedural obligations, e.g. exceeding the processing deadlines is not sanctioned; the observance of substantive provisions is discretionary, e.g. Member States shall provide pre-departure orientation programmes whenever feasible; and the discontinuation of an admission process on the basis of the lack of capacity to cater for the special needs of vulnerable beneficiaries does not give rise to a corresponding obligation of the Member State, which has chosen to participate in legal pathways schemes, to increase its insufficient capacity.

The role of third countries in the admission processes

Finally, the Regulation does not elaborate on the role of the third countries in resettlement and humanitarian admission processes. In the section on Operational cooperation, the Regulation clarifies that Member States “may decide to appoint liaison officers in third countries” (Art. 12(1)). The broad discretion awarded to Member States in this process is surprising given the recognition that third countries are responsible for exit procedures (Art. 10(7)b). It seems that the Framework foresees that the only cooperation with third countries shall be mediated by the European Union Asylum Agency (EUAA) (Art. 12(2)). However, as per the EUAA Regulation, “[t]he Agency may carry out such cooperation [with third countries] within the framework of working arrangements concluded with those authorities in accordance with Union law and policy”. (Art. 35(2)). It is in these arrangements that the responsibilities and role of the third country shall be clarified. However, it seems quite difficult, if not impossible, to see how the EU Resettlement Framework could achieve its initially stated objective to strengthen the Union’s partnership with third countries without the active engagement of these third countries in the said processes. This is surprising, as legally speaking the EU has the legal competence to engage third countries in asylum matters by way of international agreements: an approach that would be more perceptive of incorporating the interests of these third countries as partners, and not only as recipients of EU measures.

The progress made: the initial proposal for an EU Resettlement Framework

The initial proposal for an EU Resettlement Framework was put forward in 2016 as part of the proposal to reform the Common European Asylum System. Even though it mentions humanitarian admission a few times, by reference to previous practice such as the Voluntary Humanitarian Admission Scheme with Turkey of 2015, the focus of the Framework is mostly on resettlement. Therefore, the new version had its scope expanded as part of the negotiation processes leading up to the agreement of 2022.

In terms of its structure, the proposal has a much more detailed preamble which does not only elaborate on the context which led to its drafting, but also puts forward the legal basis of the draft, lays out a justification of the choice of instrument (regulation), provides links to the EU law principles of subsidiarity, proportionality and fundamental rights, and explores budgetary matters. Since one of the legal grounds of the Framework is “partnership and cooperation with third countries” (Art. 78(2)g, TFEU), alongside “common procedures” (Art. 78(2)d, TFEU), the part on cooperation with third countries is much more detailed, e.g. describing the interlinkages between resettlement and Partnership Frameworks with third countries. Very concretely, the link between cooperation with third countries and resettlement is summarized as follows: the choice of the region or countries from which resettlement shall take place will depend on the “third countries’ effective cooperation with the Union in the area of migration and asylum”, where “such cooperation should be reflected in terms of the third country's efforts to reduce the number of third-country nationals or stateless persons irregularly crossing the Union's border from its territory, their cooperation with the Union on readmission and return of third-country nationals or stateless persons irregularly staying in the territory of the Member States” (cf. Art. 4(c)(d)). The draft explicitly refers to the delegated powers to the Commission under Art. 290, TFEU, to adopt “non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act”, determining the role of third countries in the resettlement process.

While the objectives of the initial and updated drafts are quite similar, there is an important difference in the scope of the proposal of 2016. Resettlement is defined as encompassing not only people in need of international protection who have left their countries of origin, but also those displaced “within their country of nationality” (Art. 2). The draft does not elaborate on this choice of personal scope. In terms of eligibility, the Regulation also gives priority to expanded vulnerability criteria (socio-economic vulnerability in addition to UNHCR resettlement submission categories), in addition to family links.

The exclusion grounds are also broader in scope compared to the updated version. Further to the ones explained above, the initial draft Framework introduces a prima facie application of some of the exclusion grounds, which is not further defined (Art. 6(2)). Moreover, it specifies that “[p]ersons who have irregularly entered, irregularly stayed in, or attempted to irregularly enter into the territory of the Member States during the last five years prior to resettlement shall also be excluded” (cf. Art. 6(1)f).

In the old version one sees much more clearly the link between the introduction of legal pathways and the efforts to reduce irregular migration through cooperation with third countries, which has been diluted in the current updated version. Finally, unlike the new version, the old proposal introduced two types of resettlement procedures: an ordinary (whereby an assessment of the need for international protection is done in the country of asylum or of origin) (Art. 10) and an expedited one (whereby an initial assessment of the protection needs is done in the country of asylum or of origin, but the main assessment is done in the country of asylum) (Art. 11). The level of security checks is the same for the two procedures. As regards the role of the beneficiary of resettlement in the whole process, it is quite minimalistic, and devoid of rights – a similarity to the updated Framework.

Analysis: fundamental rights protection of beneficiaries of legal pathways?

The above overview of the processes foreseen in the EU Resettlement Framework points to an unequal relationship between MSs and beneficiaries of legal pathways in favour of the former. At the same time the updated Framework explicitly refers to the CFREU:

“This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union and should therefore be applied in a manner consistent with these rights and principles, including as regards the rights of the child, the right to respect for family life and the general principle of non-discrimination.” (Para. 33)

Therefore, this section poses the question of the impact of the exercise of EU law in the area of legal pathways on the protection of the fundamental rights of individual beneficiaries, more concretely through an analysis of the applicability of the CFREU. It asks, which other rights and principles of the CFREU could be applicable in the context of legal pathways, in addition to those explicitly referred to in the quote above?

Zieck and de Boer have already analyzed the position of the refugee in the process of resettlement as totally devoid of human rights protection in the absence of an EU Resettlement Framework in force. In 2018, the Court of Justice of the European Union held that EU law, and the CFREU respectively, does not apply in situations where applicants in need of international protection would apply for a visa with a limited territorial validity as per Art. 25 of the Visa Code, as long-stay visas are governed by national law only (X and X v Belgium C-638/16 PPU, 7 March 2017, para 44). The EU Resettlement Framework does not specify what type of visa should be issued to beneficiaries of legal pathways. It limits itself to the “soft” obligation for MSs to “offer, where necessary, to make travel arrangements […], and that offer shall include, where necessary, the facilitation of exit procedures in the third country forward” (Art. 10(7)b). However, it can be deduced that in the case of a positive assessment of protection grounds prior to admission to the country of asylum, beneficiaries shall be issued a residence permit as per Art. 24 of the Qualification Directive. However, as mentioned, the content of international protection does not have an extraterritorial application. Beneficiaries of humanitarian admission who are issued a humanitarian status under national law would theoretically enjoy less protection than the former category, as they are not protected by EU law fundamental rights, ensuing from the application of the Qualification Directive.

However, with the adoption of the Framework, it is clear that EU law and the CFREU would apply in the context of resettlement and humanitarian admission. It is relevant then to ask the question of which provisions of the CFREU would apply in what parts of the legal pathway process. Apart from the CFREU provisions referred to in the Framework, namely, the rights of the child (Art. 24), the right to respect for family life (Art. 7) and the general principle of non-discrimination (Art. 21), and since the Framework is primarily of a procedural character, the application of Art. 47 on the right to an effective remedy and to a fair trial and Art. 41 on the right to good administration seem to be of crucial importance. However, as beneficiaries do not enjoy a right to a legal pathway, their right to an effective remedy could apply to a procedure which the MSs is obliged to set up and perform in a certain way and within a certain deadline.

The MSs have the following obligations as per the Framework: they “shall assess whether those third-country nationals or stateless persons fall within the scope of the Union Resettlement and Humanitarian Admission Plan”, whether they are eligible and do not fall in any of the refusal grounds (Art. 10(1)a and Art. 10(3)). They shall also provide information in an accessible, clear and intelligible way in a language the beneficiary understands (Art. 10(2)ba). Despite the set deadlines for admission processing (7+3 months, Art. 10(4)), and for the emergency procedure (1 month, Art. 10(-4a)), the Regulation allows for a discontinuation of the admission procedure in cases where the Member State “is not able to respect the time limits […] for reasons beyond their control” (Art. 10(4)a). Finally the obligation set out in Art. 10(7)bc for Member States to “make every effort to ensure entry to its territory as soon as possible and not later than twelve months from the date of the conclusion” stage is not very stringent either.

However, could potential beneficiaries appeal a negative assessment of their case, when they neither have a right to a legal pathway, nor have applied for it (but have merely consented to it)? What they could do at most would be to challenge an assessment outcome on the basis of a claim on procedural fault grounds (e.g. failure on the part of the Member State to provide the necessary information in the required way). Therefore, in light of settled case-law of the CJEU, when a decision refusing admission is issued, compliance with Art. 47 of the CFREU “requires the Member States to provide for an appeal procedure against such decisions, the procedural rules of which are a matter for the legal order of each Member State, in conformity with the principles of equivalence and effectiveness, and that procedure must, at a certain stage, guarantee a judicial appeal” (MA judgment, para 46).

Additionally, the principle of good administration enshrined in Art. 41 CFREU, includes “[t]he right to be heard [which] guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely”, as well as a requirement for “the authorities to pay due attention to the observations thus submitted by the person concerned” (MM judgment, paras 87-88). Therefore, Member States are required to observe this right “even where the applicable legislation does not expressly provide for such a procedural requirement”, as in the case in point (MM judgment, para 86).

Conclusion

The current analysis of the updated draft of the EU Resettlement Framework shows that, compared to its predecessor of 2016, the version of 2022 is a much more diluted legal instrument in terms of the degree of establishing a “common approach to safe and legal arrival in the Union for persons in need of international protection” (EU Resettlement Framework, 2022, Para. 6). At the same time, it envisions some lighter sanctions for beneficiaries of legal pathways who infringe the established admission procedures, and diminishes the role of third countries, thus making the link between legal pathways and the reduction of irregular migration, with the collaboration of third countries, less conspicuous and reproachable from a human rights law perspective, especially where these third countries may have a poorer human rights record. It shows that Member States, voluntarily participating in resettlement and humanitarian admission programmes, have very few obligations towards the beneficiaries of legal pathways. This raises the question of the benefit of adopting a “toothless” regulation (almost entirely) devoid of a binding power. In the end, though, bringing legal pathways within the ambit of EU law would likely have some (albeit limited) benefit for the protection of the rights of people in need of international protection, because now they will be able to draw on the protection of fundamental rights and principles enshrined in the CFREU. Once the EU Resettlement Framework Regulation becomes part of the EU asylum acquis, eventually, it may have the potential to prove that there is beauty even in imperfection.

Provisional Agreement on the recast Reception Conditions Directive: Preventing ‘Asylum Shopping’ and ‘Secondary Movements’ as the Ultimate Goal?

 

Vasiliki Apatzidou, legal practitioner in the field of EU Asylum Law and PhD Student, Queen Mary University of London.

Photo credit: Rebecca Harms, via wikicommons

The current instruments of the Common European Asylum System (CEAS), which include the recast Reception Conditions Directive, are applicable since 2013, meaning for nearly a decade. However, already in 2015, the high number of arrivals of asylum-seekers in the European Union (EU) exposed a series of deficiencies, divergencies and gaps in the EU legislation on asylum matters. The harmonization objective lost much of its relevance in the context of the response to the refugee ‘crisis’.[i] The paradox is that the so-called ‘crisis’ happened just two years after the completion of the reform of the CEAS in the summer of 2013. Therefore, the Commission presented in 2015 a new European Agenda on Migration that included both short-term measures and proposals for the long-term.

In the long-term, the European Commission proposed in May and July 2016 a third package of legislation with the aim of strengthening protection for asylum-seekers and imposing greater uniformity in rules and procedures in different Member States. The Commission highlighted in 2016 that the prevention of ‘asylum shopping’ and ‘secondary movements’ was among the top priorities that it aimed to achieve through the reform of the CEAS. In 2016, the Commission presented the second package to reform the CEAS and one of these proposals was the 2016 proposal for a recast Reception Conditions Directive (RCD).[ii] The negotiations started in 2016, and a political agreement between the Council and the European Parliament was reached in 2018. Further attempts at the technical level were made during the Austrian Presidency, but the proposal, as of today, has not been adopted. Actually, none of the 2016 proposed instruments is adopted, to date (besides the EU Asylum Agency), and the negotiations were stalled.

Thus, the Commission in 2020 presented the new Pact on Migration and Asylum in order to boost the negotiations in the Council and propose a ‘fresh start’ on migration. As the recast RCD was one of the instruments where a provisional agreement was reached, the Commission did not amend at all this text through the proposed 2020 Pact on Migration and Asylum. As the Council is currently getting prepared to open again the discussions with the European Parliament on the recast RCD, this blogpost aims to examine the most important amendments of the recast RCD mainly regarding the proposed measures that aim to prevent ‘secondary movements’ and ‘asylum shopping’ which is at the epicenter of the proposed legislation.

To achieve this objective, on the one hand, measures that improve the dignity and integration prospects for asylum-seekers are proposed to ensure that a dignified standard of living is provided in all Member States, and secondly new measures to constrain autonomy and impose sanctions to asylum-seekers are proposed to ensure that the asylum applications will be examined in the ‘first country of asylum’ and ‘asylum shopping’ will be prevented. Specifically, in recital 13 of the recast RCD, it is explicitly mentioned that ‘applicants do not have the right to choose the Member State of application. An applicant must apply for international protection in accordance with the Dublin Regulation’. It is worth clarifying here that the Commission proposed in 2020 to replace the Dublin III Regulation with an Asylum and Migration Management Regulation, but as this has not yet been agreed, I will refer to the Dublin III Regulation for the scope of this blogpost.

Measures to enhance Integration Prospects

It is apparent in the provisional agreement that the aim of the proposed Directive is to enhance integration measures for asylum-seekers and ensure that there are inclusion prospects for them wherever they are required to apply for asylum. In this way, the Commission aims to ensure dignified standards and equal integration prospects in all Member States to ensure the prevention of ‘asylum shopping’ and ‘secondary movements’. For this reason, asylum-seekers will be allowed to work 6 months after requesting asylum, instead of the current 9-month framework (Art. 15). Moreover, it is required to enjoy equal treatment with the nationals as regards the terms of employment and other conditions (art.15 para.3). Asylum-seekers will also have access to vocational training and language courses from day one (art. 15a).  Moreover, those applying for international protection will be entitled to primary and secondary health care, including mental as well as sexual and reproductive health care (art.16). In addition, children should enter the school system no later than 2 months after arrival (Art.14), instead of the current framework that foresees 3 months. All the above-mentioned measures aim to enhance the integration prospects of asylum-seekers to ensure that they will not choose to illegally move to other countries in order to find job or access education. These measures are overall assessed as beneficial for those seeking international protection. However, integration is also dependent on actual employment opportunities, inclusion prospects and the economic situation in the responsible Member State, something that may also be influenced by large-scale arrivals of third-country nationals often witnessed in the EU external border countries.

Sanctions for being present on the territory of a ‘non-responsible’ Member State

The most striking example that proves that the main aim of the recast RCD is the prevention of ‘asylum shopping’ and ‘secondary movements’ can be found in the proposed article 17a which explicitly states that where an applicant is present in another Member State from the one that he or she is required to be present, the applicant should not be entitled to material reception conditions, access to labour marker, language courses and vocational training from the moment a transfer decision has been notified to this person. Thus, the reception conditions may actually be reduced or withdrawn with the notice of the transfer decision even if the transfer in reality is taking place later, in some cases even months after the notification of the decision. The only guarantee here is that the withdrawal of the reception conditions should be without prejudice to the need to ensure ‘a dignified standard of living’ including access to necessary health care something which has been reaffirmed from the European Court of Justice. However, how this can be achieved in practice remains controversial.

Furthermore, the possibility of reducing or withdrawing the material reception conditions in case the applicant is required to be present in a specific Member State according to the Dublin Regulation, can be found in the new paragraph 1 of article 19 that concerns the reduction or withdrawal of material reception conditions. Thus, once again it is stated that if the asylum-seeker has ‘illegally’ left the ‘first country of asylum’ and moved to another Member State, she or he may be sanctioned with even the full withdrawal of reception conditions, on the basis of the above-mentioned provision. It becomes evident that the applicant of international protection will be subject to the full benefits and guarantees envisaged in the recast RCD only when she or he is present on the territory of the Member State that the Dublin Regulation defines. In this way, the Commission hopes to discourage ‘secondary movements’ to other Member States as asylum-seekers can enjoy the full sets of rights provided in the recast RCD when they are in the ‘responsible’ Member State in accordance with the Dublin Regulation.

Restrictions on the Freedom of Movement: Prevention of ‘absconding’

Except of the proposed sanctions for the applicants that are required to be present in other Member States on the basis of the Dublin Regulation, the Commission proposes to allow states to have the possibility to decide that an applicant is only allowed to reside in a specific place that is adapted for housing applicants, where the is a risk of absconding, in particular when it concerns a) applicants who are required to be present in another Member State and b) applicants who have been transferred to the Member State where they are required to be present in accordance with the Dublin Regulation after having absconded to another Member State (Art.7). Thus, we notice that a restriction of freedom of movement is allowed to prevent ‘absconding’ and subsequently preventing asylum-seekers from illegally moving to another Member State, even in cases where there is a ‘risk’ of absconding. To add to this, in the definitions envisaged in the proposed Directive, the ‘absconding’ and ‘risk of absconding’ are defined for the first time in the asylum acquis (art.2 (10) and (11)) as until now the ‘risk of absconding’ was defined in the Return Directive. Not only restriction of movement, but even detention may be allowed in accordance with the Dublin Regulation (art.8g).

It is worth mentioning here that the proposal does not only provide for punishments for applicants who are subject to a Dublin transfer, but in the recast RDC, we witness that there are different kinds of residence restrictions that are regulated (see new proposed articles 6a and 6b), which is a novelty in comparison to the current Directive, but the analysis of these restrictions fall outside the scope of this blogpost and have been extensively examined here.

Conclusion

Although in the provisional agreement for a recast RCD, the guarantees are enhanced, and even a ‘dignified living’ shall be ensured in every case, even when the asylum applicant is present in the territory of a ‘non-responsible’ Member State, the possibility of reducing material reception conditions and integration prospects to prevent ‘secondary movements’ should not be underestimated. In the EU asylum policy debate, it is well known that external border countries such as Greece, Italy and Spain insist on more solidarity, mentioning that they cannot shoulder the burden without adequate support, while northern European countries such as Germany or the Netherlands insist on enhancing measures to prevent secondary movements. This was also apparent in the negotiations for the proposed Reception Conditions Directive. However, now that the 2020 asylum and migration instruments are under negotiations, it is important to realise that there should not be a dichotomy between ‘less secondary movements’ or ‘more solidarity’. The discussions over less secondary movements should take place in conjunction with discussions over more solidarity. In the context of enhanced solidarity, the negotiations over the recast Reception Conditions Directive should take place, if the Council decides to open again the consultations, before finally adopting the Directive which contains overall positive amendments that enhance integration prospects, safeguard a dignified standard of living and increase procedural guarantees for applicants with special reception needs.

Endnotes

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[i] Giulia Vicini, ‘The EU Refugee Crisis and the ‘Third-Phase’ Asylum Legislation: The End of the Harmisation Approach or Its Revival’ in Valsamis Mitsilegas, Violeta Moreno-Lax and Niovi Vavoula (eds.) Securitising Asylum Flows: Deflection, Criminalisation and Challenges for Human Rights (Brill 2020)

[ii] Jens Vedsted-Hansen, ‘Reception Conditions as Human Rights: Pan-European Standard or Systemic Deficiencies’ in Vincent Chetail, Philippe De Bruycker and Fransesco Maiani (Eds.) Reforming the Common European Asylum System: The New European Refugee Law (Brill Nijhoff 2016).

 

 

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

 

 

Professor Steve Peers, University of Essex

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

Where are the international law rules on asylum?

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

 The UN Refugee Convention

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

 ECHR

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

EU asylum law

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

 The CEAS consists of:

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

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

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

d) asylum procedure;

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

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

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

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

Can ‘illegal’ migrants be refugees?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What’s the impact of Brexit? 

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

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

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

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

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

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

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

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

Barnard & Peers: chapter 27, chapter 26

JHA4: chapter I:5

Photo credit: whitecliffsofdover.co.uk