Establishing the European Border and Coast Guard: all-new or Frontex reloaded?

Herbert Rosenfeldt, Research Assistant and PhD candidate, University of Passau

Introduction

Attending a birthday party at a remote checkpoint at the Bulgarian external border with Turkey does not sound like fun. Unless you are the adventurous type, you would probably hesitate to join in if it was not for someone special. Indeed, last Thursday high ranking EU and Member States’ officials visited Bulgaria’s Kapitan Andreevo Border Checkpoint to inaugurate the new European Border and Coast Guard Agency a.k.a. Frontex.

This is so far the most visible sign of the coming into force of the European Border and Coast Guard Regulation on the same day. Not lacking pathos or high expectations (Donald Tusk: “To save Schengen, we must regain control of our external borders. A new European Border and Coast Guard Agency is being created”), the new EBCG seeks to reinforce external border control against the background of last year’s migratory pressure put on the southern and south-eastern EU Member States with external Schengen borders. According to EU officials’ analyses, national border guards had been unable or unwilling to “protect” the Schengen area effectively by stopping the influx of irregular migrants. Frontex, on the other hand, was held to have been too ill-equipped in terms of powers, personnel and equipment to render sufficient support or remedy the situation. There is a simple, perhaps simplistic, rationale behind the new EBCG – one that gathered broad consensus among Member States and EU institutions resulting in a fast track legislative procedure of less than a year. The stronger EU external border control, the less permeable borders are for migrants; the smaller the number of migrants arriving, the smaller the problems within the Schengen area. Those problems comprise allocating asylum seekers and processing their claims, providing food and shelter, or safeguarding internal security and freedom of movement. The focus on external borders has been accurately criticised, inter alia, here and here.

Is the new EBCG truly a “milestone in the history of European border management”, as suggested by birthday guests but contested by others? Is the new agency something special at all? Hence is it worth joining the congratulants (if belatedly)? What birthday wishes should be made? Surely only time and further in-depth analysis can tell. Steve’s earlier post here gave the broader picture of last year’s legislative proposals on border control and migration. For now, and after two preliminary thoughts, I would like firstly to make some observations on the changing concept of EU external border management. Secondly, I highlight some institutional changes. Thirdly and fourthly, I will focus on two much debated novelties in external border control: emergency interventions and the complaints mechanism in the context of Fundamental Rights accountability.

Towards Securitisation

The drafters of the new regulation were discernibly concerned by the loss of control at Europe’s southern and south-eastern borders. Adapting to the ongoing political discourse, the wording of the Regulation (Article 1, see also Articles 4 and 15) gives top priority to regaining and keeping control of the migration situation and to efficient border management. Migration challenges and potential future threats are mentioned in succession, followed by serious cross-border crimes. The aim to be achieved is a high level of internal security within the Union while safeguarding the free movement of persons within it. In a subtle way, this almost equates migratory pressure through irregular migration with potential threats to internal security and cross-border crime. In further construing Article 1 of the Regulation, it appears that affording international protection and protecting human rights are clearly no objectives of European border management. Rather, they are perceived as restrictions to securing EU borders.

Another feature of this security-orientated approach is new migration management support teams to be deployed in hotspot areas (Article 18). Support in processing asylum claims and returning third country nationals does not help to protect the Schengen area from migrants at first sight. However, if it is done rapidly in hotspot areas, migrants are effectively not entering the Schengen area, hence apparently more security. Along the same line of reasoning, increased capacities to support return operations (Article 18, 28 et seq.) reflect political demand for enforcing third country nationals’ returns.

Legal instruments rearranged

The law of EU external border control is no role model for legal clarity and certainty. Legal acts such as the Frontex Regulation have frequently been amended, and they are intertwined with various other EU legal acts. The new Regulation at least partly smoothes this scattered landscape by merging the Frontex Regulation and the Regulation on Rapid Border Intervention Teams into one. Furthermore, the Schengen Borders Code has been amended (see below). Although based on the same EU competence (Article 77 (2) (d) TFEU), applied at the external Schengen borders and closely related to the work of Frontex and the national external border guards, Regulations on EUROSUR and surveillance of the external sea borders remained untouched. Hence the legislator missed the opportunity to create a single comprehensible piece of legislation apart from the SBC, the latter covering other subject matters such as entry conditions of third country nationals and internal border controls anyway.

New concept of external border controls

Before, States with external Schengen borders were exclusively tasked with policing those borders. Under the Frontex Regulation, border control fell into the sole competence of the Member States. Frontex’s main task then was to render border control more effective by coordinating Member States’ joint activities and providing surveillance data, technical support and expertise. The common conceptual framework informing border controls, called “integrated management system for external borders” (now Article 77 (1) (c) TFEU), only featured in strategy papers and policy recommendations of the Commission and the Council such as the non-binding Updated Schengen Catalogue 2009.

The new EBCG consists of the EBCG Agency and the national border and coast guards. Although Member States retain primary responsibility for border management, there is a clear shift towards responsibility shared with the Agency (Article 5 of the Regulation). On scrutiny, the new system arranges the Agency and the Member States in a hierarchical order. It is the Agency’s task to establish a technical and operational strategy for integrated border management. All national strategies will have to comply with it. Although co-operation outside the Agency’s remit remains possible, this is limited to action compatible with the Agency’s activities. Therefore, there is not just well-known supremacy of EU law at work in this area of shared competences, but supremacy of the Agency’s strategies, broadly phrased tasks and objectives. On paper (see the eighth and eleventh recitals), the political development of integrated border management is left to the EU organs, whereas technical and operational aspects will be clarified by the Agency. The dividing line is of course far from clear. As a result, the Agency will almost inevitably assume a more proactive role.

In my view, shared responsibility serves as a chiffre to justify taking away Member States’ discretionary powers in border control. In practice, the Agency gains greater impact and tools of supervision and coercion, as will be seen below. Still, the new Regulation has to be given credit for legally defining components of European integrated border management for the first time ever.

Institutional changes

In short, Frontex becomes … erm … Frontex! Despite last week’s “all-new” rhetoric, little will change in the constitutional setting of the Agency. As a decentralised (i.e. regulatory) agency it remains an independent EU body with legal personality. Its headquarters will remain in Warsaw. The Agency’s official name, which nobody used before, changes to a shorter name, which probably nobody will use going forwards – and that is alright because it reflects that the Agency is not founded anew but continues all its activities, albeit with expanded tasks and more resources.

To this end, the Agency’s staff grows from 309 in 2015 to 1,000 in 2020. The number of Member States’ border guards deployed in EBCG teams remain subject to annual bilateral negotiations. At the same time, a rapid reaction pool of 1,500 European border guards as a standing corps operational within 5 days has been inscribed in the Regulation. The Agency continues to maintain a technical equipment pool composed of equipment owned by either the Agency itself or by the Member States. With an increase in budget to more than twice the amount of 2015 (€143.3 to €322 million in 2020), the Agency might actually start acquiring equipment on its own in the future.

Of the Agency’s tasks (see the long list in Article 8 (1) of the Regulation), most have been assigned to Frontex before. Characteristic of the new supervisory role are vulnerability assessments carried out by the Agency to evaluate the capability and readiness of Member States’ border guard to act in emergencies. The assessment might lead to binding recommendations by the Executive Director. To disregard them can eventually result in a situation requiring urgent action as described further below. Moreover, Frontex shall deploy liaison officers in the Member States monitoring and reporting on national external border management. It is true that command and control in EBCG operations remains with the host Member State. However, from now on, the host Member State has not only to consider the Frontex coordinating officer’s views, but also to follow them as far as possible.

Another noteworthy development concerns the Agency’s support rendered to Member States coping with migratory pressure at so-called hotspots. The existing provisions on hotspots in EU Decisions on relocation of asylum-seekers have been codified in Article 18 of the Regulation, which now assigns a supportive role to Frontex in migration management. This includes screening, registering and providing information to third country nationals on their right to apply for international protection. It further includes facilitating their return right from the hotspot area.

One might argue that the European Asylum Support Office is better placed to do all that. However, in my opinion the crucial question is to what extent any EU agency involved influences or determines the Member States’ decisions on entry, to afford international protection or to return migrants. Such executive powers have not been granted to EU institutions and therefore – at least by law – they remain firmly within the Member States’ jurisdiction. The provisions provide for tailor-made support teams coordinated by all relevant Union agencies under the auspices of the Commission. Thus, the new Regulation acknowledges the role of agencies and the significance of hotspots without clarifying much. It remains to be seen how the agencies will delineate their respective contributions. If you have always been looking for a legal definition of hotspot area, at least you will find one in the new Regulation (Article 2 (10)).

Situations requiring urgent action – right to intervene?

How to deal with emergency situations at the external borders of Member States unwilling to act – that was the only matter of serious contention during the legislative process. In normal operation and as before, a Member State at first formally requests the Agency’s support and the launch of EBCG operations (Articles 14 (1), 15 (1) and (2), 18 (1) et al). At the second stage, the Member State and the Executive Director agree on the operational plan (Article 16 (2)). Lastly, the host Member State itself retains command for the whole operation (Article 21 (1)). The Commission proposal for the Regulation challenged those safeguards for the Member States’ sovereign right to border protection. The Commission envisaged itself initiating emergency interventions conducted by the Agency and supported by the Member State concerned. Boldly, this was labelled the Agency’s “right to intervene”. Understandably, it stirred criticism among Member States.

The subsequent trilogue put things in order again: Now it is an implementing act of the Council (proposed by the Commission) which substitutes the Member State’s request at the first stage if (a) the State did not follow the recommendations resulting from vulnerability assessments or (b) it faces specific and disproportionate challenges at his external borders without requesting or supporting joint EBCG operations (Article 19 (1)). The implementing act of the Council authorises the Agency to take various measures. It is binding upon the Member State. In turn, it becomes evident that the Member State’s formal request in accordance with the normal procedure might no longer be as voluntary as the wording suggests. Because if joint European action is deemed necessary, there is always the possibility that an emergency intervention will eventually be initiated.

Yet, at the second stage, the Member State still has to agree on the operational plan submitted by the Agency (Article 19 (5)). This might be interpreted as linking emergency interventions to the Member State’s consent after all. However, in the light of the purpose of emergency interventions, I submit that the duty to fully comply with the Council decision and to this end cooperate with the Agency entails the duty to consent to the operational plan. Otherwise, it would always be possible for reluctant Member States to impede the whole procedure depriving it of much of its force.

For the implementation of the measures prescribed by the Council, the Member State concerned still acts as host state. As a consequence, that State retains command and control of the operations and can be held liable as in normal operations. It can be questioned whether an unwilling State should be forced to lead a joint operation in times of emergency. At the same time, however, it is most likely that different entities will be engaged in the process. The decision not to conduct operations or to request assistance is often taken at a high political level, whereas operational command is exercised within the national border guard authorities.

Lastly, Article 19 (10) most remarkably links the Member State’s non-compliance with the Council decision and failure to cooperate with the Agency to prospective national measures taken within the Schengen area. According to newly amended Article 29 of the Schengen Borders Code, the Council upon proposal by the Commission may recommend to Member States the reintroduction of controls at their internal borders if the Member State’s behaviour (a) puts the functioning of the area without internal borders at risk, and (b) leads to a serious threat to public policy or internal security. This mechanism can be triggered only 30 days after the Council takes its (urgent?!) decision. As a result, Member States that do not – for whatever reason – cooperate at their external borders in emergencies can de facto be temporarily excluded from the area of free movement. The much-stressed concept of solidarity (Article 80 TFEU) hence turns into its evil twin: showing solidarity means complying with the EBCG activities à la EU. It becomes the prerogative of the EU institutions to determine who is in solidarity, and the lack thereof entails serious consequences.

In sum, the new Regulation establishes a legal obligation to cooperate in situations requiring urgent action of the Member State concerned. If the State does not comply, there is no way to enforce this duty or to deploy EBCG teams on his territory against his will. The only sanction seems to urge other Member States to close their internal borders instead.

Human Rights complaints mechanism and accountability

When Frontex was established in 2004, the Fundamental Rights (FR) implications of its work had been completely overlooked. The founding Regulation did not contain any specific references to FR. Over the following years through a piecemeal approach, largely affirmative and declaratory FR obligations found their way into the Regulation. More importantly, Frontex drew up an FR strategy (followed by an action plan) in 2011. At the same time, a consultative forum and an FR officer were established to give advice on FR matters and strengthen FR compliance. With the new Regulation, there are minor improvements on the human rights record. Article 1 now mentions FR, they form part of compulsory reporting and evaluation schemes as set out in the operational plan, and there is a single comprehensive provision spelling out FR obligations (Article 34).

The Regulation finally introduces a FR complaints mechanism (Article 72, discussed here) as demanded by European Parliament, EU Ombudsman and Council of Europe since 2013. Any person directly affected by actions of staff during EBCG operations can file a complaint about FR violations with the FR officer. The FR officer is responsible for setting up the complaints mechanism, administering complaints and deciding on their admissibility. He or she then directs them to either the Executive Director or the competent national authority for them to decide on the merits and an appropriate follow-up. The FR officer then again monitors this decision as well as the follow-up.

In my view, the effectiveness of the mechanism depends on two preconditions. Firstly, the FR officer’s resources should increase significantly to stem the Herculean tasks ahead of him. Secondly, his institutional independency within the Agency has to be reinforced, bearing in mind that he is a member of staff and dependent on good working relationships with other members of staff. Several open questions remain. For example, the provision leaves open how the FR officer will enforce the appropriate follow-up by the Agency or the Member States. It does not make clear that the complaints mechanism does not affect other remedies, nor does it foresee an appeals procedure with an independent body. The FR officer and ultimately the Executive Director or the Member States authorities will have to answer difficult legal questions on who is “directly affected” by an action and who is responsible for it (see below). For the development of the law, it would have been better if a court or tribunal had had subsequent jurisdiction. So far, actions for annulment or damages (Articles 263, 268 TFEU) have not generated any EU case law regarding Frontex, and except for its judgment in Hirsi Jamaa, the ECtHR was not able to fill the gap neither.

“The extended tasks and competence of the Agency”, the 14th recital of the Regulation reads, “should be balanced with strengthened fundamental rights safeguards and increased accountability”. But does the new Agency live up to the claim? Apart from the complaints mechanism, the FR framework largely stays the same, and so does the general liability framework: The home Member State takes disciplinary action whereas the domestic laws of the host Member State determine criminal liability. It is also the host Member State incurring civil liability for the EBCG teams. The Agency itself incurs non-contractual liability according to the general principles of EU law (Article 340 (2) TFEU). There are no provisions determining which acts or effects of external border control are attributed to the Agency or to the Member States involved (a problem of multi-actor scenarios, where the 2011 ILC Articles on the Responsibility of International Organizations might be of help). Following recent revelations on the frequent use of firearms in joint operations, MEPs wrote to Executive Director Fabrice Leggeri asking for more information and general guidance on responsibilities in certain operational scenarios. The ignorance displayed by Frontex’s designated watchdogs (see Article 7 of the Regulation) is further evidence for the need of more transparency and legal clarity in this regard.

Outlook

On the 6th of October 2016 the landscape of EU external border control did not change dramatically, but it did change. To repeat: No new agency has been founded, no EBCG under EU command and control was established, no right to intervene at Member States’ external borders against their will has been introduced. In fact and most notably, the Member States’ external border guard is placed under increased scrutiny of the EBCG Agency. Failure to comply with integrated border management standards could eventually lead to reintroducing internal border controls to the detriment of the disobedient Member State. At the same time, the Agency’s enhanced tasks and powers will go hand in hand with more responsibility and accountability, but the latter has yet to be improved. Although the complaints mechanism is a step in the right direction, its design could have been more effective. This holds true especially for the follow-up mechanism. In practice, much will depend on the Fundamental Rights officer’s assertiveness on the one hand, and the Executive Director’s responsiveness on the other hand.

After all, the distinguished guests to the celebrations at Kapitan Andreevo Border Checkpoint last week did not witness birth or rebirth, but rather Frontex’s coming of age both in terms of leverage and responsibilities. Frontex, I wish you well indeed.

Barnard & Peers: chapter 26

JHA4: chapter II:3

Photo credit: http://euranetplus-inside.eu/citizens-corner-debate-migration-maze-policing-europes-borders-whose-job-is-it/

The Orbanisation of EU asylum law: the latest EU asylum proposals

Steve Peers

There have been a number of EU proposals to deal with the perceived ‘refugee crisis’ in Europe over the last year. The latest batch, issued this week, are perhaps the most significant to date. They concern three related issues: visas (notably a short-term Schengen visa waiver for Turkish nationals); Schengen (partly suspending the open borders rules for six months); and asylum (changing the Dublin system on responsibility for asylum seekers, and creating a new EU asylum agency). Further proposals on legal migration and other EU asylum laws are coming in the months ahead.

Essentially, these proposals amount to the ‘Orbanisation’ of EU asylum law. They copy and entrench across the EU the key elements of the Hungarian government’s policy, which was initially criticized: refusing essentially all asylum-seekers at the external border and treating them as harshly as possible so as to maintain the Schengen open borders system. 

Background

The surge in the number of refugees and migrants coming into the EU since 2014 led initially to a discordant response from Member States, with Germany and Sweden initially welcoming the arrivals and Hungary trying to stop them. Last September, in a bid to modestly assist the ‘frontline’ border states of Greece and Italy with the large numbers of asylum-seekers, the EU adopted two Decisions on ‘relocation’ (discussed here), in principle taking up to 160,000 asylum-seekers off those countries’ hands and distributing them among other Member States. However, this ‘Plan A’ was ineffective, as some Member States refused to cooperate (even launching legal action) and the remainder relocated very few people.

So ‘Plan B’ was developed: an EU/Turkey deal whereby Turkey either prevented the large number of refugees on its territory from leaving, or readmitted them back from the EU if they did reach EU territory (which in practice usually means the Greek islands). To implement this, Greece agreed to treat Turkey as a ‘safe third country’ or a ‘first country of asylum’ under EU asylum law, with the result that claims were treated as inadmissible. As discussed earlier on this blog, this is a highly dubious interpretation of the law. To induce Turkey to cooperate, the EU agreed to spend money on the welfare of Syrian refugees in Turkey, and to drop the short-term visa requirement for Turkish citizens to visit the EU countries in the Schengen system. (It also agreed to open one more ‘negotiating chapter’ relating to Turkish accession to the EU, but this is a trivial concession: only one of these 35 chapters has been agreed to date, in 11 years of accession negotiations).

In the meantime, many Member States became concerned about the numbers of migrants and refugees reaching their territories, and so resumed checks on the previously open borders between Schengen states. However, under the relevant Schengen rules dating from 2013 (on which, see my thinktank report on the Schengen system here), the authority to do this will soon expire, unless the EU as a whole agrees to suspend the Schengen system for one or more periods of six months. This prospect has been mooted since December 2015 (as discussed in detail here).

So this week’s proposals aim to implement and entrench these policy developments: waiving the visa requirement for Turkey; allowing a limited suspension of Schengen; and amending the Dublin system to reflect the EU/Turkey agreement, to deter asylum-seekers from moving between Member States (allowing Schengen to be fully reinstated) and to incorporate a new version of the failing relocation rules.  All of these measures are related, but I will examine each of them in turn. 

Visas

There are three separate proposals to amend the EU visa list. All of them need to be agreed by the European Parliament, as well as a qualified majority of participating Member States in the EU Council.  The proposals, if adopted, would not apply to the UK and Ireland, which have their own laws on visa requirements (or waivers) for non-EU countries, due to an opt-out from the EU’s visa laws. That opt-out forms part of those countries’ overall opt-out from the Schengen system, which allows the UK to check people at its borders and refuse entry to non-EU citizens based (mostly) on UK law. It is therefore dishonest to suggest that the proposals would lead to an increased migrant influx into the UK. Indeed the UK’s withdrawal from the EU would not change the rules at all as regards non-EU citizens seeking to enter the UK from (the rest of) the EU – other than the small minority who apply for asylum or who are family members of EU citizens.

These proposals would, in turn: a) waive visa requirements for Turkish citizens; b) waive visa requirements for Kosovo; and c) make it easier to reimpose visa requirements in the event of immigration control issues. It should be noted that the Commission also recently proposed to waive visa requirements for Ukraine and Georgia; those proposals are still under discussion. All these proposals would, if adopted, amend the EU’s main law on visa lists, which dates initially from 2001. That law has been amended many times since, without any official codification of those amendments, but I have codified it unofficially here. Note that the visa waiver would apply to Turkish citizens, not to Turkish residents like the refugees from other countries living there.

The visa waiver for Kosovo is not linked to the overall refugee crisis, but rather to the policy of strengthening relations with EU neighbours, in part as an incentive for them to settle their own disputes. The Commission report on Kosovo fulfilling the requirements for visa waivers refers in particular to a recent border agreement between Kosovo and Montenegro. It also refers to meeting the requirements as regards readmission, reintegration, document security and organised crime.

As for Turkey, there is obviously a direct link with the EU/Turkey refugee deal. A fast-track visa waiver was promised to Turkey as part of that deal. But it is still subject to Turkey meeting the EU’s conditions. According to the Commission’s report, Turkey meets all but 7 of 72 requirements: the exceptions relate to issues like readmission, corruption, terrorism and document security, and the Commission believes that they will be fulfilled by the time the visa waiver is granted. In any event, the document security point is addressed by limiting the visa waiver to those with biometric passports. 

A longer staff working document elaborates on this assessment, but it is not convincing on several points. As regards asylum issues, it states that the obligation to lift the geographical limitation on the Geneva Refugee Convention (which means that Turkey only fully recognises Europeans as refugees) is met by Turkey because that country treats non-Europeans just as well as if they are refugees. But it skips over the lack of work permits for refugees who are not Syrians. It also concludes that Turkey does not refoule refugees to dangerous countries (as alleged by NGOs) simply by accepting Turkey’s word to the contrary. The Commission also waives the obligation for Turkey to ratify Protocol 7 to the European Convention on Human Rights, on the grounds that its national law offers equivalent protection. But if so, why be afraid of the supervision of the European Court of Human Rights on these issues? And it is only clear reading the staff working document that the (unresolved) concerns about ‘terrorism’ laws are actually concerns about misuse of terrorism law to crack down on freedom of expression. The main report does not even flag this as one of the most significant concerns. And the existence of these concerns gives the lie to the Commission’s argument (in an earlier proposal, still under discussion) that human rights in Turkey are so well protected as to classify Turkey as a ‘safe country of origin’ for asylum purposes.

The proposal to reimpose visa requirements more easily is implicitly linked to the Turkish visa waiver proposal, although in fact it could apply to any State on the visa waiver list (the ‘white list’). The current rules, dating from 2013, allow ‘emergency’ reimposition of a visa requirement by the EU Commission for a six-month period, renewable for another six months if the Commission proposes to amend the law to make this permanent. This temporary Commission decision can be blocked by Member States, but does not need the approval of the European Parliament. The grounds for it are ‘sudden and substantial’ increases in irregular migration, rejected asylum applications or rejected readmission applications from the country concerned.

There are some further details of these rules in the preamble to the 2013 law.  A ‘substantial’ increase is an increase above 50%, and a low rate of recognition of asylum applications constitutes 3% or 4%, although in either the Commission could choose to use a different number.  Reimposition of visas is not automatic: there is a diplomatic phase during which the Commission talks to the officials of the other country and warns them to take action in light of the impending threat.  The Commission will only propose reimposition if it is not satisfied with the outcome of these talks. So far it has not done so.

Basically the new proposal would make it easier to reimpose visas in several ways. First of all, it would no longer be an ‘emergency’ or ‘last resort’ decision, and the increases in irregular migration, rejected asylum applications or rejected readmission applications would no longer have to be ‘sudden’. Secondly, the reference period for examining the increased irregular migration, etc would no longer be over six months, but over two months. Third, the increase in asylum applications would no longer have to lead to ‘specific pressure’ on asylum systems; so there would need not be a large absolute number of asylum applicants from the country concerned, just a large relative increase in the number of applications.

Fourth, the rejected readmission applications would relate not only to citizens of the country concerned, but also to citizens of other countries who transited through that State’s territory. This is obviously aimed at enforcing the key feature of the EU/Turkey plan: the readmission of refugees to Turkey. Fifth, the possibility of triggering reimposition of visas as compared to the period before the visa requirement was dropped would now apply indefinitely, and would no longer expire after seven years. The immediate impact of this change would be on Western Balkans countries, where (apart from Kosovo) the EU waived visa requirements in 2009 and 2010. Sixth, the Commission can trigger the clause, not just Member States. It could act on the same grounds plus an additional ground of failure to apply a readmission deal with the EU as a whole.

Again, the final point aims at enforcing the EU/Turkey refugee deal. If Turkey does stop readmitting refugees, the EU can swiftly react by reimposing visa requirements. This works both ways, of course: if the EU threatens to reimpose visas on Turkish citizens on some other ground, such as an increase in Turkish citizens overstaying without authorization, then Turkey will likely refuse to take back refugees. Indeed, as discussed above, Turkey is threatening to do this if the EU does not waive the visa requirements in the first place – which accounts for the EU’s haste on this point.

Finally, a side issue (relating only to Turkey) is worth discussing. The EU/Turkey association agreement has a Protocol, signed in 1970, that sets a standstill on the free movement of services and freedom of establishment. That means the EU and its Member States can’t make the rules on these issues stricter than they were when the Protocol was signed. The CJEU has also ruled that if the rules are made more liberal than when the Protocol was signed, they can’t be made less liberal after that point without violating the standstill (Toprak and Oguz). While the standstill rule doesn’t apply to tourist visas (Demirkan), it does apply to visas for short-term economic activity (Soysal). 

So would the standstill rule in the association agreement prevent the EU from reimposing visas for economic activity by Turkish citizens? In its case law (see most recently Genc, discussed here), the CJEU has said that the standstill rule can be overridden on public interest grounds. So far the case law on this point has concerned integration of family members, although it could also be argued that the objective of preventing irregular migration is also a valid ground to override the standstill. In fact, the CJEU has been asked whether migration control objectives can override it, in the pending case of Tekdemir. However, this case won’t be decided until well after June (when Turkey wants the visa waiver in place); and like the earlier cases, it concerns legal migration. 

Schengen

The idea of suspending Schengen for up to two years was originally mooted back in December – as I discussed in detail at the time. The mechanics of the process, as I detailed there, have been grinding away for some time. Now we have nearly reached the final stage: a Commission Recommendation for a Council Recommendation to suspend Schengen. Once the Council adopts this (by a qualified majority of Schengen states), the suspension can go ahead.

However, the Commission has tried to limit this suspension in time and in space. It would only apply to Germany, Austria, Sweden, Denmark and Norway (where the unilateral authority to suspend border controls is about to expire), and only for an initial period of six months. The Commission argues that the tightening of EU immigration and asylum law should have had sufficient effect by then, so a further suspension would not be justified. Time will tell if this is true: the Schengen rules allow for three six-month extensions of the initial suspension.

For legal reasons, as I discussed in the earlier blog post, the suspension has to be based on blaming a Member State for insufficient control of its external borders. Obviously, the Commission has named Greece. But it has warm words for Greece’s efforts in the last few months, and flights to and from Greece to the Schengen zone will not be affected. This rather measured and proportionate approach contrasts with the Commission's asylum proposals - to which we now turn.

Asylum

Again, there are three separate proposals, all of which need to be agreed by the European Parliament, as well as a qualified majority of participating Member States in the EU Council.  First of all, the current Dublin III Regulation, which sets out rules determining which Member State is responsible for an asylum application, would be replaced by a new Regulation – which I will call ‘Dublin IV’. Secondly, the current Eurodac Regulation, which supplements the Dublin Regulation by providing for the storage and comparison fingerprints of asylum-seekers and those who crossed the border irregularly, will also be replaced by a new Eurodac Regulation. Thirdly, the current law establishing an EU agency known as EASO (the European Asylum Support Office), would be replaced by a new law creating an EU Agency for Asylum (the ‘EU Asylum Agency’).

This is just one batch of proposals: as the previous Commission communication from April (discussed here) set out, it will also soon propose new laws to amend the existing laws on qualification (definition) of refugees and people needing subsidiary protection status, asylum procedures, and reception conditions for asylum-seekers. In effect, this will amount to a third phase of the Common European Asylum System.

Currently, the UK and Ireland have opted in to the EU laws regarding Dublin, Eurodac and EASO. They opted out of the second-phase asylum Directives, but are covered by the first-phase Directives (except Ireland never opted in to the first-phase reception conditions Directive). Denmark and the Schengen associates (Norway, Iceland, Switzerland and Liechtenstein) participate in these laws on the basis of treaties with the EU. It would be up to the UK and Ireland to decide whether to participate in the new proposals; if not, the current Regulations continue to apply. If they opt out of the discussions on the proposals, they could still opt in later after adoption of the legislation, if they find that the final result is more to their liking than they had feared at the outset. Denmark and the Schengen associates could refuse to participate, but in that case their treaties with the EU will automatically terminate.

In the event of Brexit, the UK would no longer be subject to any of the EU asylum laws it is now participating in, unless the EU and the UK negotiate an agreement to that effect. It should be noted that the EU has in practice only ever been willing to extend the Dublin rules to non-EU States if those States are also Schengen associates. (Indeed in some cases, the Dublin and Schengen association treaties have been negotiated as a package).

The EU Asylum Agency

I will start with the least contentious of the new proposals.

Currently, EASO has a number of practical cooperation tasks. In particular, it must: ‘organise, promote and coordinate’ the exchange of information and identify and pool good practice, as well as activities relating to country-of-origin information (ie, information about conditions in asylum seekers’ countries of origin), including gathering and analysis of that information and drafting reports on that information; assist with the voluntary transfer of persons granted international protection status within the EU; support training for national administrations and courts, including the development of an EU asylum curriculum; and coordinate and exchange information on the operation of EU external asylum measures. For Member States under ‘particular pressure’, the Office must gather information concerning possible emergency measures, set up an early warning system to alert Member States to mass influxes of asylum seekers, help such Member States to analyse asylum applications and establish reception conditions, and set up ‘asylum teams’.

For its contribution to the implementation of the Common European Asylum System, the Office gathers information on national authorities’ application of EU asylum law, as well as national legislation and case law on asylum issues. It also draws up an annual report on the situation regarding asylum in the EU. At the request of the Commission, the Office may draw up ‘technical documents on the implementation of the asylum instruments of the Union, including guidelines and operating manuals.’ The Office can also deploy ‘asylum support teams’ on the territory of a requesting Member State, in order to provide ‘in particular expertise in relation to interpreting services, information on countries of origin and knowledge of the handling and management of asylum cases’.

How would the EU Asylum Agency be different? As with the parallel proposal for a European Border Guard (discussed here), the Agency would not replace national administrations, but play a bigger role coordinating them.  The main changes are: an obligation to exchange information with the Agency; a stronger role in analysis of the situation of countries of origin, including advice on alleged ‘safe countries of origin’; the development of guidance on applying EU asylum law; monitoring of the Common European Asylum System, including the capacity of Member States to apply it; and increased operational and technical assistance for Member States. An indication of the bigger role for the Agency as compared to EASO will be the planned increase in staff – from about 150 to around 500.

Eurodac

The current Regulation requires Member States to take the fingerprints of all asylum-seekers and irregular border crossers over 14 years old. This information is then stored in the Eurodac computer system. Every asylum-seeker’s fingerprints are compared with those already in the system, to see if he or she has either applied for asylum already or crossed the border irregularly. This is taken as evidence as regards which Member State is responsible for the asylum application under the Dublin rules.

Eurodac can also be used for other purposes. In 2013, the Eurodac law was revised to give police forces and the EU police agency, Europol, limited access to the fingerprint data for the purposes of criminal investigations. Member States may choose to check the fingerprints of an irregular migrant against the system, for the purposes of identification, without storing that data.

The proposed new Regulation would make some key changes to these rules. First of all, it would significantly enlarge the amount of personal data that will be taken and stored. Member States will have to take information on children from the age of six (rather than fourteen), and facial images as well as fingerprints. Eurodac will also now store data on the names, nationalities, place and date of birth, travel document information. For asylum-seekers, it will store the EU asylum application number (see the Dublin IV proposal), as well as information on the allocated Member State under the Dublin rules, for the first time. For irregular border crossers and irregular migrants, it will store the date of the removal from the territory.

There will no longer be an option merely to check data on irregular migrants; rather Member States will be obliged to take and store this information. While the rules on police and Europol access to Eurodac data will not be changed as such (although the Commission will review those rules soon), there will be more personal data for them to access: they will be able to get facial image information, and more individuals will have their personal data recorded in Eurodac in the first place.

Secondly, it will be possible for fingerprint data to be taken not only by national officials, but also (as regards asylum-seekers and irregular border crossers) by the new EU Border Guard and EU Asylum agencies. Thirdly, while asylum-seekers’ data will still be retained for ten years, data on irregular border crossers will now be retained for five years – up from 18 months at present. Data on irregular migrants will also be retained for five years. The data will be marked if a Member State gives a residence permit to an irregular migrant. Finally, Eurodac data will now be made available to third countries for the purposes of return, on certain conditions, including a refusal to disclose if the person who has applied for asylum. But the non-EU country might guess that the person has applied for asylum; in fact the EU’s procedures Directive requires that country to be informed of this in some cases.

The Commission justifies these changes by the need to strengthen the EU’s return policy as regards irregular migrants, and to keep track of them if they make movements across the EU. It believes that taking fingerprints and photos of young children is justified for child protection reasons. Collecting personal data on facial images is justified because some persons refuse to have their fingerprints taken.

This proposal obviously raises huge data protection issues, and it will be important to see what concerns are raised by national data protection authorities, as well as the EU’s Data Protection Supervisor. The arguments about child safety should be independently assessed by child protection experts. It is conceivable that taking facial images would avoid the need to insist upon taking fingerprints coercively, but it’s not clear why the Commission believes that storing data on names, birthdates et al is justified. The use of Eurodac to underpin EU return policy obviates much need to use or expand the Schengen Information System (which currently contains data on non-EU citizens who are meant to be refused entry) for similar purposes, and raises the question of whether there need to be two different databases addressing the same issue. The choice between the two databases is particularly significant for the UK, since it will have access to the Eurodac returns data (if it opts in to the new proposal), but doesn’t have access to the immigration alerts in the Schengen Information System, and indeed can’t have access to those alerts unless (rather improbably) it fully joins Schengen. (However, the UK does have access to the criminal law alerts in the Schengen Information System, such as alerts on suspected terrorists: see my further discussion here. It could lose that access after Brexit, as I discuss here).

Dublin IV

As noted at the outset, the amendments to the Dublin Regulation essentially aim to entrench the EU/Turkey deal and to save Schengen by deterring secondary movements of asylum-seekers, while also making a fresh attempt to establish relocation rules. To accomplish each of these objectives, the Commission proposes an extreme solution which is probably legally and/or politically unfeasible.

Let’s examine each element in turn. In order to entrench the EU/Turkey deal (and possibly future heinous deals with countries like Libya), the proposal transforms a current rule which gives Member States an option to apply to state that a non-EU state is a ‘safe third country’ for an asylum applicant in accordance with the asylum procedures Directive, rather than send the applicant to another Member State or consider the application after a transfer from another Member State under the Dublin rules. The CJEU recently took a permissive view of this provision (Mirza). In place of this option, there would be an obligation to assess the inadmissibility of an application on ‘safe third country’ or ‘first country of asylum’ grounds before applying any of the rules on responsibility for applications. This confirms the current practice as regards asylum-seekers coming from Turkey to Greece, which aims to return as many of them as possible to Greece despite the dubious designation of Turkey as a ‘safe’ country for asylum-seekers.

This doesn’t matter much in cases where Greece would anyway be responsible for considering the application under the Dublin rules, because it was the first country where the applicants entered. (Moreover, due to recent closure of the Greece/Macedonia border and other controls and fences on internal and external Schengen borders, it’s now very difficult to leave Greece even for those asylum-seekers not in detention). But contrary to popular belief, that is not the only ground for assigning responsibility under the Dublin rules. There’s also an obligation to bring family members together, where one of the family members has status as a refugee or asylum-seeker or otherwise has legal residence in another Member State.

The Mirza judgment did not address whether these family rules take priority over the ‘safe third country’ option, but the Dublin IV proposal is clear.  If a case is inadmissible on the dubious ‘safe third country’ or ‘first country of asylum’ rules, then the Member State in question is responsible, regardless of the family or humanitarian clauses in the Regulation. It’s arguable that this is a breach of the right to family life set out in the EU Charter of Fundamental Rights. But it’s certain that this change completely undercuts the broadening of the definition of ‘family member’ contained in the Regulation – extending it to cover siblings and families formed after leaving the country of origin (while Syrians were living in Turkey, for instance). Those changes therefore amount to a legal ‘Potemkin village’ – a cynical façade intending to mislead a naive onlooker.

It might be argued that family members should not be encouraged to pay smugglers and take unsafe routes to reach their loved ones who are already in the EU. Fair enough – but in that case, the EU should take steps to ensure their safe passage (note that the EU’s family reunion Directive requires Member States to admit family members of refugees). There’s nothing in this week’s batch of proposals to do that. The EU’s informal arrangements with Turkey do provide for ‘nuclear family’ members as one category of Syrian refugees to resettle. But these arrangements are not binding and (at time of writing) not even officially published (see this entry in the Council register of documents). They only apply to the ‘nuclear’ family, and only for Syrians.

Next: the attempt to deter secondary movements of asylum-seekers, in order to reinstate the Schengen system. Most notably, there will be punishments for asylum-seekers who do not stay in the responsible Member State. In that case the asylum procedure will be accelerated, and they will lose all benefits (health, education, welfare and accommodation) except for emergency health care. (However, the grounds for detention of asylum-seekers in the Dublin Regulation will not change – though the future proposal to amend the reception conditions Directive might seek to amend the detention rules there instead.) This will overturn the CJEU ruling in CIMADE and GISTI, which was based on the right to dignity in the EU Charter. Let’s put it plainly: asylum-seekers who flout the Dublin rules will be left to starve in the streets – even children, torture victims and other vulnerable people. And fast-tracking their asylum application implicitly aims at refouling them to their country of origin, with only limited suspensive effect of any appeal to the courts.

The violations of the Charter don’t stop there. According to the CJEU case law on the current Regulation, unaccompanied minors can move to another Member State and apply there. This ruling (MA) is also based on the Charter (rights of the child), but the Commission wants to overturn that too – in the process trashing its own proposal dating from 2014. Again, any attempt to argue that this aims to protect children by deterring them from moving is undercut by the prioritisation of inadmissibility rules over family reunion rules (even for unaccompanied children), as well as the failure to insert rules to ensure that the Dublin family rules are actually applied (such as the recent UK ruling on a requirement for DNA tests). If the EU and its Member States care so much about asylum-seeking children, why have they detained so many in Greece in poor conditions, and shrugged as so many suffered in northern Greece – shirking the legal obligations which they accepted to relocate them?

Furthermore, the proposal limits both the substantive and procedural remedies for applicants. They will only be able to challenge a decision on the responsible Member State on the grounds that the asylum system has broken down, or that they should be with their family member. This overturns the opinion in the pending cases of Karim and Ghezelbash (although it is possible that the Court will not follow this opinion). Also, they will only have seven days to appeal: this risks a breach of the Charter right to an effective remedy, given that in the Diouf case the CJEU found that a 14-day time to appeal was acceptable.

The proposal doesn’t only aim to restrict asylum-seekers in order to ensure that Dublin works effectively; it will also restrict Member States to the same end. The essentially unlimited discretionary ‘sovereignty’ and ‘humanitarian’ clauses will be amended to severely limit the circumstances in which a Member State can examine an application that is not its responsibility. If Angela Merkel (improbably) wanted to repeat her open-door policy of summer 2015 in future, the proposal would make that illegal. Various deadlines for Member States to act would be speeded up (although Member States have said before that this is impractical). Conversely, other rules which limit Member States’ obligations will be dropped: there will be longer periods of responsibility after issuing a visa or residence permit, and responsibility for those who cross a border without authorisation, or who abscond or who leave the EU and then come back, will be endless.

This brings us to the relocation rules. These will be triggered once a Member State is responsible for more than 50% of the asylum applications which objective criteria (based on income and population) indicate that it ‘should’ be responsible for. In other words, if Greece ‘should’ be responsible for 50,00 asylum applications under those criteria, other Member States would be obliged to relocate asylum-seekers from Greece once it was responsible for 75,000 applications. But Member States can't relocate asylum seekers whose applications are inadmissible under the new rules discussed above, so this may have little impact on Greece anyway. Indeed, if the EU/Turkey deal breaks down, the combination of these rules would in principle put Greece in a worse position than it is currently. A new emergency relocation Decision would have to derogate from the Dublin rules again.

Then the proposal becomes truly surreal. The Commission suggests that Member States may opt out of relocating asylum-seekers, but they will have to pay €250,000 per asylum-seeker if they wish to do this. This is a fantasy on top of a fantasy. Member States have already shown that they are unwilling to apply the relocation Decisions of last September, or to adopt the proposal to amend the Dublin rules to this end that was tabled at that time. The idea of financial contributions in place of accepting individuals, whatever its merits, is perceived to be a ‘fine’ and was already rejected by Member States last year. That idea will not suddenly appear more attractive to Member States by doubling down on it, and suggesting a contribution set at an obviously absurd and disproportionate level, which the Commission does not even try to justify.

So why did the Commission jump the shark here? Perhaps someone in the Commission lost a bet. Or perhaps this is a legislative homage to the Belgian surrealist tradition of Magritte, et al. More seriously, it might be intended as a negotiating position. But such a ridiculous position will just backfire: it’s as if management started the latest pay talks with the unions by arguing that the workers should start paying the company for the privilege of working there. Or perhaps it’s a subtle way of addressing Greece’s debt problems: rejecting the relocation of a mere 10,000 asylum-seekers from Greece would transfer €2.5 billion to the Greek treasury – where it would rest briefly on its route to Germany. 

I have another theory, well known to followers of British politics. Maybe the €250,000/person proposal is the Commission’s equivalent of ‘throwing a dead cat on the table’. The phrase is borrowed – like the EU’s current asylum policy – from Australia. It means that if the political conversation is particularly damaging to a certain politician, an ally of that politician suddenly does or says something outrageous. Everyone will start talking about that outrageous thing, just as they would be talking about the unfortunate feline; which means that no-one is talking about the original issue any more.  In this case, it means that everyone is talking about the €250,000 – and no-one is talking about the suspension of Schengen, or of the families who would be split up, or the people who would be made hungry and homeless, by the Commission’s Dublin IV proposal.

Conclusion

The Commission’s proposals are not a done deal, of course. Some Member States and Members of the European Parliament have misgiving about a visa waiver for Turkey, on migration control or human rights grounds. MEPs fought for years for many of the provisions in the Dublin III Regulation (on family members and unaccompanied minors in particular) which the Commission now seeks to overturn. As I pointed out above, some of the proposed changes to the Dublin rules are highly vulnerable to challenge in the CJEU, if adopted. The red herring of a €250,000 sanction is already floating on the surface of the pond. And the whole EU/Turkey deal might anyway be overturned at the whim of Turkish President Erdogan – the only politician whose ego makes Donald Trump’s look small by comparison. Nevertheless, EU asylum policy is already becoming more Orbanised in practice, and I would expect at least some elements of the further Orbanisation proposed by the Commission to be adopted.

For over twenty-five years now, the EU and its Member States have been attempting to get the Dublin system to work. The continued abject failures of those attempts to get this pig to fly never seem to deter the next attempt to launch its aviation career.  With this week’s proposals, the Commission is in effect trying to get the poor beast airborne by sticking a rocket up its backside. It might be best to stand back.

Barnard & Peers: chapter 26

JHA4: chapter I:3, chapter I:4, chapter I:5, chapter I:7

Photo credit: JapanTimes.co.jp

Detention of asylum-seekers: the first CJEU judgment

Steve Peers

One of the most controversial aspects of immigration and asylum law is the detention of migrants: people who have broken no criminal law (other than, possibly a criminal law about migration control) but who are detained during their asylum application, or pending their removal from the country. The EU has had rules on detention of irregular migrants for some time, in the Returns Directive (on the CJEU’s interpretation of those rules, see my journal article here).  But it has only recently had rules on the detention of asylum-seekers, in the second-phase Directive on the reception conditions for asylum-seekers. (The UK and Ireland have opted out of both Directives).

Recently, in the JN judgment, the CJEU ruled for the first time on the interpretation of these new rules. In fact, this was the Court’s very first judgment on any aspect of the second-phase legislation, although it soon gave another judgment (on the rights of people with subsidiary protection, discussed here), and other cases are pending. The Court’s ruling addresses a number of key questions of interpretation of the detention rules, but left a number of issues open.

In general, the Court has limited the prospect of detaining asylum-seekers on grounds of ‘national security or public order’, and its ruling implicitly somewhat constrains the possibilities of detaining asylum-seekers on other grounds too. But in parallel to that, the judgment strengthens the rules in the Returns Directive on the detention and expulsion of irregular migrants. And the Court’s ruling is surprisingly open to the application of human rights ‘soft law’ as a means of interpreting EU law. Overall, while not mentioning the current ‘refugee crisis’, the judgment is an implied rebuff to those who would like to resort to extensive detention of asylum-seekers as a means to address that crisis.

Background

The first phase reception conditions Directive (adopted in 2003, applicable from 2005) said little about detention of asylum-seekers. While the subsequent Returns Directive did regulate detention of irregular migrants, the CJEU made clear in Kadzoev and Arslan that those rules did not apply to asylum-seekers, because EU asylum legislation gives asylum-seekers the right to stay on the territory until a decision is made at first instance on their application, whereas the Returns Directive says that irregular migrants should be booted out as soon as possible. In Arslan, the Court clarified the relationship between the two sets of rules: an irregular migrant detained under the Returns Directive could not simply escape from detention by applying for asylum. Essentially the JN judgment returns to the same issue, and asks the Court to reconsider its position in light of the more detailed rules on detaining asylum-seekers which now apply.

So what are those rules? In the second-phase reception conditions Directive, the previous ban on detaining people solely because they have applied for asylum is retained. The Directive then provides generally for detention of asylum-seekers if ‘necessary’ after ‘an individual assessment of each case…if other less coercive alternative measures cannot be applied effectively’. Detention is permitted ‘only’ on six grounds: (a) ‘in order to determine or verify [an asylum-seeker’s] identity or nationality’; (b) to ‘determine the elements on which’ the application is based ‘which could not be obtained in the absence of detention, in particular where there is a risk of absconding’; (c) in order to decide on entry onto the territory; (d) when the asylum-seeker is detained pursuant to a planned expulsion under the Returns Directive, and there are objective grounds to show that he or she applied for asylum only to ‘delay or frustrate’ expulsion, despite having had an opportunity to access the asylum procedure; (e) ‘when protection of national security or public order so requires’; or (f) in accordance with the Dublin III Regulation on allocation of asylum-seekers between Member States, which provides for detention if there is a ‘significant risk of absconding’ before a Dublin transfer is carried out.

The grounds for detention must be ‘laid down in national law’, which must also lay down rules on alternatives to detention. There are detailed rules on procedural guarantees as regards detention, and on the conditions of detention. Those procedural guarantees and detention condition rules also apply to Dublin cases, and the Dublin Regulation moreover sets out precise rules on the length of detention. The CJEU has been asked to interpret the ground for detention in the Dublin III Regulation, in the pending Al Chodor case.

The judgment

Mr JN had made three prior applications for asylum. They were all unsuccessful, but nevertheless he was not removed from Dutch territory. Over a period of 20 years, he accrued more than twenty convictions for criminal offences. The case did not concern detention for those criminal convictions, as such detention falls outside the scope of the Directive (unless, arguably, the criminal conviction is related to immigration offences: more on that point below). Rather it concerned detention on grounds of ‘public order and national security’, which the Dutch government imposed in light of his criminal offences – but not as a penalty for them.

Obviously such detention is compatible in principle with the Directive, which expressly provides for detention on such grounds. So Mr. JN instead argued that the relevant provision in the Directive itself was invalid. It should be noted that another pending case asks the CJEU whether two other grounds for detention in the Directive are invalid: verification of identity or nationality, and determining the elements on which the application is based.

The Court began its analysis by reiterating its prior case law that the European Convention on Human Rights (ECHR), which includes rules on detention, does not bind the EU as such. Instead, it assessed the validity of the clause in the Directive in light of the EU Charter of Fundamental Rights – although this did entail some assessment of the validity of that clause in light of the ECHR as referred to in the Charter, as discussed below.

According to the Court, detention undoubtedly affects the liberty of the individual, as guaranteed by Article 6 of the Charter. So the question is whether this particular ground for detention was justified, in light of the general test for limiting Charter rights set out in Article 52(1) of the Charter. This test requires that limitations on Charter rights must: (a) be prescribed by law; (b) not infringe the essence of the right; (c) be aimed at protecting an objective of general interest, or the rights and freedoms of others; and (d) be proportionate – meaning that they are appropriate and necessary to achieve their objective.

Applying these tests, the Court first found that the possibility of detention on grounds of public policy or national security was prescribed by law, since it was set out in the Directive. It did not infringe the essence of the right to liberty, since it was based on individual conduct and applied in ‘exceptional circumstances’, circumscribed by the various general limits and guarantees relating to detention set out in the Directive. Detention on grounds of public order and national security meets a public interest, and moreover protects the right to ‘security’ of others.

The Court’s most detailed reasoning therefore concerned proportionality. Detention on public order or national security grounds was inherently ‘appropriate’ to the objective of ensuring public protection. It was ‘necessary’ for a number of reasons, which the Court elaborated in some detail. All restrictions on liberty have to be ‘strictly necessary’ and this particular ground to detain was ‘strictly circumscribed’ by the overall legal framework: detention on such grounds had to be ‘require[d]’; detention must be provided for in national law; the general limits and safeguards on detention in the Directive apply; the exception is limited by international human rights ‘soft law’; and the concepts of ‘public policy’ and ‘national security’ had to be narrowly interpreted.

The Court explored the latter two points further. As regards international human rights ‘soft law’, it noted that in the Commission’s original proposal for the Directive, it referred to a Council of Europe Recommendation on detention of asylum-seekers, as well as UNHCR guidelines on detention. It then applied some of the text of the latter guidelines: in particular detention of asylum-seekers must occur ‘only exceptionally’ in an ‘individual case’ as a ‘last resort’, where ‘necessary, reasonable and proportionate to a legitimate purpose’.

As for the detention grounds of ‘public policy’ and ‘national security’, the Court applied last year’s judgments in T and Zh and O (discussed here and here), in which it had ruled that ‘public policy’ exceptions in other EU immigration and asylum legislation had to be narrowly interpreted, consistently with the narrow definition of that exception in EU free movement law. In JN it said the same for the national security exception as regards detaining asylum-seekers, and furthermore as regards the grounds for entry bans longer than five years, as set out in the Returns Directive. So the exceptions apply only where there is a genuine criminal or security threat, not where there the authorities simply deem it expedient to detain people.

Next, the Court applied its interpretation of the Directive to the facts of this case. He was detained due to his prior offences and pending expulsion order, which was attached to a ten-year entry ban. Since entry bans for longer than five years can only be issued on grounds of a ‘serious threat to public policy…public security or national security’ it followed that detention could be ordered in the same circumstances – as long as proportionality was ‘strictly observed’ and those reasons are still valid.

The Court also made clear that the pending expulsion order could not lapse during consideration of JN’s asylum application. The national case law which provided for it to lapse had to be disapplied by the national court, in order to ensure the effectiveness of the Returns Directive (ie the expulsion of irregular migrants). So Mr JN was a sort of ‘Schrodinger’s migrant’: allowed to stay on the territory while his asylum application was considered (and so subject to the detention rules in the reception conditions Directive); but also simultaneously subject to an expulsion order under the Returns Directive, which was only temporarily suspended – and which continued to justify (in part) his detention under the formally distinct set of asylum rules.

Finally, the Court concluded by looking at the position under the ECHR, in the context of the Charter. The former was relevant to the latter because Article 52(3) of the Charter says that the ‘meaning and scope’ of Charter rights which ‘correspond’ to ECHR rights is the same as those ECHR rights.  However, the Court easily dismissed the ECHR argument by pointing out that in the recent judgment of the European Court of Human Rights (ECtHR) in Nabil v Hungary, an asylum seeker could still be detained pursuant to Article 5(1)(f) of the Convention (which allows detention ‘where action is being taken with a view to deportation’) because rejection of an asylum application would entail enforcement of an expulsion order. But the Court did refer to the safeguards in other ECtHR case law: there can be ‘no element of bad faith or deception by the authorities’, and detention must be proportionate.

Comments

As the CJEU’s first proper judgment on detention of asylum-seekers, the JN ruling may become seminal. That’s not because of the facts of this particular case: with three failed asylum applications and over twenty criminal convictions to his name, the grounds to detain Mr JN are stronger than they are for many other asylum-seekers. But much of what the Court said in its judgment has potentially wider impact.

I will analyse that possible impact from five angles: (a) the ‘public policy and national security’ ground of detention; (b) the application of other grounds for detention; (c) the Court’s use of ‘soft’ human rights law; (d) the interpretation of the Returns Directive; and (e) the role of law in the development of the EU’s asylum regime more generally.

The ‘public policy and national security’ ground of detention

The Court made clear that the public policy and national security grounds for detention must be narrowly interpreted, and interpreted consistently with EU free movement law. Mr JN’s detention was justified because of his prior criminal offences in conjunction with the underlying expulsion order. But are these tests cumulative or alternative? And are they exhaustive?

The Court does not address these questions. However, the requirement to interpret these grounds consistently with EU free movement law suggests that the two tests are exhaustive. Arguably criminal offences alone could justify detention, in light of the nature of this ground for detention. But the principle of proportionality must mean that detention would be harder to justify in the absence of an expulsion decision, and that the seriousness and number of the offences are also highly relevant. (Remember that detention under the Directive is distinct from detention ordered as a result of a criminal conviction, or pre-trial detention linked to the criminal proceedings).

Conversely, it seems unlikely that an expulsion decision alone could justify detention on this ground. If that were permitted, it would be too easy for Member States to justify the detention of almost all asylum-seekers, by issuing irregular migrants with expulsion orders as soon as they are apprehended, before they can apply for asylum. This would undercut the Court’s emphasis on the exceptional nature of detention of asylum-seekers. Furthermore, the Directive has a lex specialis on detaining asylum-seekers who had been subject to expulsion orders: the ‘last-minute application’ clause. If the drafters of the Directive had intended a broader possibility to detain asylum-seekers merely because they were subject to expulsion orders, they would have drafted that clause differently.

Other grounds for detention

While most of the JN judgment focusses on the particular ‘public policy and national security’ ground for detention of asylum-seekers, some of the Court’s reasoning casts light by analogy on the validity and interpretation of the other five detention grounds.

First of all, each of the other five grounds for detention of asylum-seekers restricts their liberty, so must be also justified under Article 52(1) of the Charter. Applying the Court’s analysis in the JN judgment by analogy, each of those other five grounds is ‘prescribed by law’, at least according to the CJEU’s approach to that concept. However, the other grounds are not so closely linked to individual conduct of the person concerned, although arguably the ‘last-minute application’ and Dublin III ‘serious risk of absconding’ ground have a closer link than the others (the Dublin III Regulation refers to ‘reasons in an individual case’ to suggest that an asylum-seeker may abscond). Nor is it clear how the ‘exceptional circumstances’ concept applies to the other grounds, although they are all also subject to the general limits and guarantees relating to detention set out in the Directive.

The public interest arguments for the other grounds of detention are less obvious, although the Court could probably find them: the efficiency of the asylum system, and (as regards the entry control and ‘last-minute application’ grounds) immigration control (see the Schwarz judgment by analogy). But the restrictions on liberty are not so obviously appropriate as is the case for public policy and national security (except as regards the ‘last-minute application’ clause, provided that there was an effective opportunity to apply for asylum).

As for necessity, the Court applied the ‘strictly necessary’ rule to all deprivations of liberty. Furthermore, the other grounds for detention are also subject to the general limits and safeguards set in the Directive, and the rule that detention must be provided for in national law. However, not all of the specific features which the Court discussed in JN apply to the other grounds for detention: there is no obligation that detention on the other grounds be ‘required’, and the interpretation of those other grounds under EU law and international human rights soft law will necessarily be different. That brings us neatly to the Court’s innovative use of that soft law.

The Court’s use of ‘soft’ human rights law

First of all, the Court’s use of international human rights ‘soft law’ is remarkable in itself. It’s only taken account of such rules once before in the immigration and asylum context: the El Dridl case, where the preamble to the Returns Directive referred to a Council of Europe Recommendation on detention of irregular migrants. But in JN, the explanatory memorandum to the original proposal is enough to trigger incorporation of the soft law into the Court’s interpretation of the Directive.

It’s not clear if this may have broader implications beyond the reception conditions Directive. I’ve checked the original proposals for the other second-phase asylum laws, and none of them refer to international soft law as far as I can see. (But note that the preambles to the legislation do refer to the Geneva Convention on refugee status, as well as the UN Convention on the Rights of the Child).

However, it does have a number of implications for the interpretation of the reception conditions Directive. I have read through both ‘soft law’ measures invoked by the Court, and noted some key points where they could be useful in interpreting the Directive. For the sake of readability, I have put some of the detail in an Annex to this blog post. But here are the highlights.

The soft law gives more precise explanations for detention on grounds of determining nationality or identity, or to determine elements of the claim. A crucial point here is a detailed interpretation of Article 31 of the Geneva Convention, which states that refugees ‘coming directly’ from persecution cannot be penalised for irregular entry if they breach immigration law for ‘good cause’ and contact the host State’s authorities ‘without delay’. This is a big issue in practice.  

Two years ago, in its judgment in Qurbani (discussed here), the CJEU said it would not interpret Article 31 of the Convention, unless EU legislation referred to it. Well, the preamble to the second-phase reception conditions Directive does refer to it, in the context of detention (so does the Dublin III Regulation, and EU anti-smuggling law). Since criminal penalties for irregular entry are affected by the Returns Directive (according to the CJEU’s case law), it must follow that they are also affected by EU asylum law, a fortiori because the EU legislators expressly refer to Article 31 of the Convention. 

What does this mean on the ground? While the JN judgment did not concern Article 31, the CJEU's willingness to apply the UNHCR guidelines on detention means that those guidelines could be relevant to its interpretation. First of all, those guidelines say that asylum-seekers are covered by Article 31, even if their refugee status has not yet been established. Next, the 1999 version of the guidelines say that ‘coming directly’ also covers cases where asylum-seekers travelled through other countries. The ‘good cause’ rule must be interpreted in context, and there is no strict time limit for contacting the authorities. Between them, these interpretations of Article 31 should limit asylum-seekers’ criminal convictions for irregular entry considerably. In any event, EU legislation and case law says that asylum-seekers are entitled to stay on the territory and are outside the scope of the Returns Directive since they cannot be considered irregular; subjecting them to a criminal prosecution for irregular entry would directly contradict this.

Furthermore, the soft law is relevant not only to the grounds for detention, but also alternatives to detention, judicial review of and the conditions for detention. On that latter point, it mentions the practice of religion in detention, as well as a broader measure of contact with the outside world. Asylum-seekers should have a complaints procedure concerning detention conditions. There are more details on detention of vulnerable persons.

On that point, I can never pass on an opportunity to comment on the quite obnoxious derogations permitted in the Directive, allowing Member States to waive the requirements for separate accommodation for detained families and detaining women separately from unrelated men, in ‘duly justified’ cases at the border. In light of the Charter rights to privacy, the rights of the child and the EU’s imminent signature of the Council of Europe Convention on violence against women (on which, see here), these derogations are surely either invalid or can only apply in cases of force majeure.

Interpretation of the Returns Directive

The Returns Directive says nothing explicitly on the lapse of return decisions. This judgment is the first time the CJEU has ruled on the issue. While the Court only addresses the specific point of return decisions lapsing due to an asylum application, it might be argued by analogy that the lapse of return decisions in other circumstances is also incompatible with the Returns Directive. Although Member States are allowed to set higher standards than the Returns Directive, that only applies if those standards are still ‘compatible’ with the Directive. As we saw in the Zaizoune judgment (discussed here), such higher standards cannot amount to a waiver of the obligation to return people. It’s implicit in the JN ruling that equally it’s not compatible with the Directive for return decisions to lapse as soon as an asylum application is made.

The role of law in the development of the EU’s asylum regime

The JN ruling came as the EU took further measures to reduce the numbers coming to or staying on the territory – most notably by reaching a controversial arrangement with Turkey (on which, see here). Overall, the judgment sends a clear signal that the CJEU is going to assert its legal authority to ensure that measures taken to deal with the refugee and migration crisis are compatible with human rights, in particular as regards asylum-seekers – although conversely the Court is keen to strengthen the obligation to expel those who have not established any need to stay.

More broadly, the EU’s refugee policies are obviously in a state of deep crisis. Rather than leave the issue entirely to populists at the EU or national level, it would be better for the EU ask a panel of respected international experts to recommend (quickly) how the EU, in the wider international context, should deal with the crisis. I would nominate (say) Mary Robinson, David Miliband, Madeline Albright and Carl Bildt for this task. In any event, we cannot go on as we are: the EU needs an asylum policy that is simultaneously fair, humane, realistic and coherent; but it is falling far short of that at the moment.  

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: UNHCR, B. Szandelszky

Annex

Council of Europe Committee of Ministers Recommendation

Point 1 – the definition of ‘detention’ is taken implicitly from ECHR case law, and is more precise than in the Directive

Point 3 – a general provision says ‘the aim [of detention] is not to penalise asylum-seekers’. The ground of detention to determine nationality or identity is explained in more detail than under the Directive. It applies ‘in particular when asylum seekers have destroyed their travel or identity documents or used fraudulent documents in order to mislead the authorities of the host state’. The ground of detention to determine elements of the asylum claim is less detailed than under the Directive, which contains the following additional words: ‘in particular where there is a risk of absconding of the applicant’.

There is no parallel to two of the grounds for detention under the Directive: under the Dublin process (ie where there is a ‘significant risk of absconding’ during that process); and where there is an asylum application purely to forestall an expulsion decision, if the asylum-seeker had previously had an opportunity to apply for asylum. 

Point 4 – says there must be a ‘careful’ examination of the grounds for detention in individual cases, and detention shall be ‘non-arbitrary’.

Point 5 – discusses grounds for judicial review, which are not expressly mentioned in the Directive. If a maximum detention duration has not been provided for by law, the duration of the detention should form part of the review by the above-mentioned court (see the Mahdi judgment on the Returns Directive by analogy).

Point 6 – ‘Alternative and non-custodial measures…should be considered before resorting to measures of detention’. The Directive does not state this expressly.

Point 7 - Measures of detention should not constitute an obstacle to asylum seekers being able to submit and pursue their application for asylum.

Point 8 - Asylum applications from persons in detention should be prioritized for the purposes of processing. This is especially the case where a person is held in detention because of reasons resulting from the law pertaining to foreigners.

Conditions of detention

Point 15 - Detained asylum seekers should be allowed to practice their religion and to observe any special diet in accordance with their religion.

18. Asylum seekers should be allowed to contact and, wherever possible, receive visits from relatives, friends, social and religious counsellors, non-governmental organisations active in the field of human rights or in the protection of refugees or asylum seekers, and to establish communication with the outside world. Note that this is wider than Article 10(4) of the Directive.

19. Asylum seekers should be guaranteed access to a complaints mechanism concerning the conditions of detention. This issue is not mentioned in the Directive.

22. If minors are detained, they must not be held under prison-like conditions…If [placing outside detention] proves impossible, special arrangements must be made.

UNHCR guidelines

Guideline 2 - Interprets Article 31 of Geneva Convention – also referred to in preamble to the Directive. Refers also to UNHCR Executive Committee conclusions for more on when detention is ‘necessary’ under Article 31 of the Convention

Article 31 applies also to asylum-seekers, not just recognised refugees; 1999 version of conclusions: (point 4) ‘coming directly’ clause also covers cases where the asylum seeker transited through other States on way to State where they are now present. No strict time limit to the phrase ‘without delay’. ‘Good cause’ – must look at all the circumstances

Guideline 3 – must consider alternatives to detention first – same as in CoE recommendation.

Grounds for detention (i) to prevent absconding (matches Dublin III Regulation to some extent); (ii) manifestly unfounded or abusive claims (no match with Directive); (iii) to verify identity or security; no reference to nationality (so not as complete a correspondence as CJEU suggests); (iv) elements of the claim – explained in detail ‘within the context of a preliminary interview' (with further clarification); (v) public health (no match in the Directive); (vi) national security; or (vii) a 'last minute' application to frustrate expulsion (no match in the Directive) 

Point (d) of Article 8(3) of the Directive doesn’t appear here; ‘procedure to enter the territory’ does not apply.

General rule – cannot use detention as a deterrent, or to dissuade continuing with claims; not punitive or disciplinary, or for breach of rules at reception centres or camps.

Guideline 4.3 – more detailed rules on alternatives to detention than in Article 8(4) of the Directive.

Guideline 5 - detention cannot be discriminatory

Guideline 6 - there must be time limits on detention

Guideline 7(iv) – right of asylum-seeker or lawyer to attend hearing re review of detention; 7(v) – authorities have burden of proof re detention; 7(vi) not an obstacle to pursue the asylum application (as in CoE recommendation).  

Guideline 8 – like CoE Recommendation: religious diet, wider access to outside world; more details on basic necessities than in Directive (ie ‘dignity’); no prison uniforms or shackling; also refers to complaints procedure (like CoE Recommendation) but goes into further detail than that Recommendation

Guideline 9 – more details on vulnerable persons than in Art 11(1) of the Directive