The Three Villains and the Lifeblood of the European Union Project – Advocate General Sharpton’s Opinion in C-715/17 (the asylum relocation mechanism)

Niels Kirst, PhD candidate in EU law, Dublin City University

The Backdrop of the Migration Crisis

Recently, Advocate General Sharpston (hereafter ‘the AG’) had to give her opinion on the failure to implement Decisions of the Council regarding the relocation of migrants within the European Union. The opinion deserves distinction due to its firmness and its comprehensive categorization of the concept of solidarity in the European Union legal order. The case itself has a political importance since it relates to the ongoing rule of law crisis within the European Union.

The case concerned the Area of Freedom, Justice and Security (hereafter ‘AFJS’), Article 72 TFEU (the safeguard clause) and the Dublin Regulation, which allocates responsibility for asylum applications within the EU. In the proceedings, the European Commission (hereafter ‘the Commission’) brought infringement proceedings under Article 258 TFEU against Poland, Hungary and the Czech Republic for not implementing Decisions of the Council within their legal order. The case occurred at the Court of Justice of the European Union (hereafter ‘the Court’ or ‘Court of Justice’) as a direct cause of the migration crisis of 2015 in the European Union.

In September 2015 the migration crisis in the European Union was in full swing. Italy and Greece were overwhelmed by the number of migrants arriving at their shores each day. In response, on the 14th and 22nd of September 2015 respectively, the Council decided in urgently convened meetings that provisional measures are necessary to support Greece and Italy, which under the provisions of the Dublin Regulation, had to bear the highest burden in the migration crisis. This emergency was caused by a sudden influx of migrants into the European Union due to the military conflict in Syria.

In consequence, the Council (by qualified majority), agreed on Decision 2015/1523 and Decision 2015/1601 (hereafter ‘Relocation Decisions’ – discussed further here). The Council used Article 78 (3) TFEU as legal basis for the decisions, which provides the following: “In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned.” The article is located in Title V of the Treaty which deals with the AFJS and the common asylum and immigration policy of the European Union.

In an earlier proceeding, the legality of Decision 2015/1601 was unsuccessfully challenged by the Slovak Republic and Hungary (the judgment is discussed here). Having said that, the Czech Republic, Poland and Hungary decided to not follow the Relocation Decisions since they regarded them as a threat to their internal security. The essential question of the present proceedings was, therefore, if the three defendant Member States can advance a claim that absolves them of their obligations under the Relocation Decisions? (see para. 69 of the Opinion)

The Factual Background

The Relocation Decisions by the Council required the allocation of, respectively, 40 000 and 120 000 applicants for international protection within the Member States of the European Union. The Relocations Decisions required Member States to pledge a certain number of applicants, which would be identified by Greece and Italy and subsequentially be transferred to the pledging Member State.

Poland, while initially pledging to take 100 applicants, did not relocate any applicant. Hungary did not pledge to the Commission to accept any applicants. The Czech Republic pledged to the Commission to take 30 applicants, from which 12 have been relocated. (see para. 72) In response, the Commission noted in its Fifteenth Report on relocation and resettlement in 2016 that, "Hungary and Poland remain the only Member States that have not relocated a single person […]. Moreover, the Czech Republic has not pledged since May 2016 and has not relocated anyone since August 2016."

The Substance of the Case

After rejecting a long line of merely procedural challenges of admissibility the AG declared the infringement proceedings brought by the Commission admissible. The challenges of admissibility by the Member States were unfounded in so far as they did not undermine the valid purpose and the legal interest of the Commission in bringing the proceedings.

The AG started her substantive assessment of the case by pointing out that Decisions of the Council pursuant to Article 288 TFEU are binding upon the Member States and that the relevant Decisions are intra-vires as in so far the earlier challenge on legality of one of the Decisions brought by the Slovak Republic and Hungary was dismissed as unfounded by the Court. (para. 153 – 157)

The Commission alleged in its claims that the Member States failed to comply with the pledging requirement on the one hand, and with the relocation requirement on the other hand. By failing to pledge to take any asylum seekers the three Member States consequently also failed to effectively take any asylum seekers. This argument was supported by the AG since the failing to pledge necessarily also fails to relocate. (para. 170 – 171) 

After supporting the Commission’s arguments concerning the factual basis, the AG shifted to the assessment to the justifications of the defendants for their non-compliance with the Relocation Decisions. This gave the AG the possibility to comment extensively on very fundamental concepts of European Union law – namely, the principles of sincere cooperation, the rule of law, and European Union solidarity.

Poland, Hungary and the Czech Republic raised two substantial justifications for their non-compliance with EU law. Respectively, that Article 72 TFEU, read in conjunction with Article 4 (2) TEU allowed Member States to disapply the Relocation Decisions, and that the Relocation Decisions created a dysfunctional system. (para. 172 – 174) The Commission countered these arguments by pointing to the necessity of effet utile of EU law and the principle of solidarity, which is a fundamental principle of EU law. (para. 175)

Article 72 TFEU, which was the main defence raised by the three Member States, provides the following: “This Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.” The three Member States used this article as justification which relieves them from their obligation to comply with the Relocation Decisions. The Commission argued that Article 72 TFEU should be interpreted similarly to the limitations for public security, et al, that apply to the fundamental freedoms of the internal market. (para. 187)

Regarding Article 72 TFEU, the AG first touched upon the concepts of ‘law and order’ and ‘internal security’ which are essential for understanding the scope of that article. Therefore, the AG turned to the three previous occasions in which the article had been treated by the Court: respectively Adil, A and Slovak Republic and Hungary v Council. (para. 190 – 194)

The AG acknowledged that the judgment in Slovak Republic and Hungary v Council foreshadowed the arguments which had been raised by the three defendants in the present proceedings. The AG cited the following crucial paragraph of the judgment in this regard, “If that mechanism were ineffective because it requires Member States to check large numbers of persons in a short time, such practical difficulties are not inherent in the mechanism and must, should they arise, be resolved in the spirit of cooperation and mutual trust between the authorities of the Member States […].” (para. 194)

On the concepts of ‘public order and security’ the AG pointed out that there must be a sufficiently serious threat affecting one of the fundamental interests of the society to establish a public order intervention (N, discussed here) and that the concept of security cannot be determined unilaterally by each Member State without any control by the institutions of the European Union (Zh and O, discussed here). (para. 196 – 201)

The AG pointed specifically to the judgment in Bouchereau in the realm of the fundamental internal market freedoms, in which the Court found that it is the personal conduct of the individual concerned that must be assessed to determine whether there is a threat to the community of the Member State in question. (para. 199) The assessment of the personal conduct of the individual regarding the concepts of public order and security was crucial in the AG’s assessment.

Regarding Article 72 TFEU, the AG stated that the Article can only serve as a derogation measure in case the European Union legislator disregarded to take account of that obligation when drafting EU secondary law in the area of AFJS. (para. 202) However, in the present case, the European Union legislator did acknowledge the concepts of public order and security when it drafted the Relocation Decisions. Respectively, Article 5 (4) and 5 (7) of the Relocation Decisions took into account the concern of security as they gave right to Member States to refuse an applicant on reasonable grounds. (para. 203)

According to the AG, "it was perfectly possible for them to preserve the safety and welfare of citizens by refusing (on the basis of the Relocation Decisions themselves) to take applicant X, […]." (para. 207) However, they refrained to take that route and instead decided to entirely not apply the Decisions to safeguard their internal security.

Furthermore, the AG clarified that Article 72 TFEU may not be used in this way. It is not a conflict of laws rule which give the Member States competence over measure enacted by the EU legislature; instead, it is a rule of co-existence under the principle of subsidiarity. (para. 212) To substantiate this claim, the AG cited Factortame, NN (L) International, and Commission v Hungary to find that Article 72 TFEU is not a carte blanche to disapply any valid measure of EU secondary law with which a Member State disagrees. (para. 214 – 221)

In conclusion, the AG pointed to the measures which exist in EU law, regarding the safeguarding of security and public order, which allow Member States to deny a particular applicant entrance into a Member State. However, the AG clarified that there is no general pre-emption of EU secondary law by Article 72 TFEU. (para. 223)

Regarding the invocation of the principle of national identity enshrined in Article 4 (2) TEU by the three Member States, AG Sharpston again pointed to the case-law: Commission v Luxembourg, in which the Court held that national identity cannot lead to a general exclusion of applicants due to their nationality. There are less restrictive means to preserve the social and cultural cohesion of a society. In analogy, the AG applied this concept to find that a general exclusion of asylum applicants cannot be sustained. (para. 224 – 227)

Finally, all three defendants raised the claim that the Relocation mechanism was dysfunctional and that the dysfunctionality exposed them to a hardly assessable security risk. Further, the Czech Republic claimed that it would have been pointless to pledge certain numbers to the Commission since the majority of applicants would have been undocumented in any case, and the Czech Republic would be unable to assess the risk that such undocumented migrants pose to the country. (para. 228 – 229)

The AG rebutted the arguments by pointing to the principle of solidarity which requires the Member States to support each other in a situation of emergency, which was present during the migration crisis. Further, there would have been other means for the Member States concerned to express their fear of the dysfunctionality of the system. For example, by applying for temporary suspension of their obligations under the Decisions, as done by Austria and Sweden. (para. 234 – 235) Consequently, the AG opined to uphold the infringement against the three Member States.

Additional Remarks by the Advocate General

In the final part of the Opinion, the AG commented on the concepts of the rule of law, the duty of sincere cooperation and the concept of solidarity within the European Union. Concerning the rule of law, the AG noticed its primordial importance recognised in Article 2 TEU and the case-law of the Court (the most recent rule of law judgment is discussed here). Specifically, the AG remarked, "at a deeper level, respect for the rule of law implies compliance with one's legal obligations. Disregarding those obligations, in a particular instance, [when] they are unwelcome or unpopular is a dangerous first step towards the breakdown of the orderly and structured society governed by the rule of law which, as citizens, we enjoy both for its comfort and safety." (para. 241)

Concerning the duty of sincere cooperation, the AG clarified that this principle builds upon the common values of all EU Member States as enshrined in Article 2 TEU. These common values allow mutual trust among them which subsequentially enables mutual recognition in the realm of AFJS. Against this backdrop, the principle of sincere cooperation has to be understood. The AG assessed that the principle of sincere cooperation has been manifestly mistreated by the conduct of the three Member States. (para. 242 – 245)

Concerning Solidarity, the AG referred to the founding fathers of the ‘European project’, to find that only their openness and spirit to one another enable the European Union to flourish. Famously, the Schuman Declaration recognized solidarity as a cornerstone. Subsequently, the Court echoed that call for solidarity in Klöckner-Werke v Commission and formally recognized the principle of solidarity in Eridania zuccherifici nazionali and Others. (para. 246 – 251)

Moreover, the AG recognized that the principle of solidarity requires burden-sharing as seen in Grzelczyk and Bidar. Particularly, the AG stated that "Solidarity is the lifeblood of the European project. Through their participation in that project and their citizenship of the European Union, Member States and their nationals have obligations as well as benefits, duties as well as rights. Sharing the European ‘demos’ is not a matter of looking through the Treaties and the secondary legislation to see what one can claim. It also requires one to shoulder collective responsibility and (yes) burdens to further the common good.” (para. 251 – 255)

Comment

The significance of this opinion cannot be overstated. Due to the pending departure of the United Kingdom from the European Union, this could have well been the last Opinion from the British Advocate General Eleanor Sharpston. This may explain the length, accuracy and profundity of the opinion. Indeed, the Opinion provides a fully-fledged account of some of the core principles of European Union law and their respective case-law. The opinion will likely find its way into the canon of significant AGs' opinions – most notably concerning the reconstruction of what solidarity within the European project means, entails and what it requires by the Member States.

While touching upon core principles of European Union law, the opinion also clarifies the obligations of Member States under Decisions of the Council in the realm of AFJS. The Opinion gives guidance concerning the concepts of security and public order in EU law and assess the position of Article 72 TFEU in the EU legal order. Article 72 TFEU does not serve as a general derogation clause for Member States when they do not agree with a specific measure, instead, Article 72 TFEU applies only for particular cases under individual assessment or, when the EU has failed to take security and public order into account during the legislative process.

Besides, the Opinion has also a significant relevance in the ongoing rule of law crisis in the European Union. The proceeding before the Court concerned a case of disregard of secondary EU law by Member States. This disregard was presumably based on a national preference of not taking any applications for asylum. The Opinion clarifies that the rule of law in the European Union requires not only the independence of the national legal system but also, and foremost, the respect for and implementation of valid European Regulations, Directives and Decisions.

The key take-away of the opinion is the emphasis and the account on solidarity by the AG. Solidarity is essential for the functioning of the European legal order, as well as for the flourishing of the European project. By spanning a frame from the founding fathers of the European Union project to the migration crisis in the European Union of today, the AG distils the purpose and the idea of European solidarity. The European Union is not a system of cherry-picking of only the good parts while denying the burdens and obligations which also come with the membership. Instead, benefits and burdens have to be shared equally in the spirit of European Union solidarity.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: The Malta Independent

Should the EU sanction its Member States for breaches of rule of law and human rights? Part 2: The Application of Ordinary EU law

Professor Steve Peers, University of Essex

Should the EU sanction its Member States for systematic breaches of human rights and the rule of law – and if the answer is yes, how should it do so?

This is the second of three blog posts discussing this issue. The first post examined the formal process set up to sanction Member States to this end: Article 7 TEU. As I discussed there, this process – which could lead to suspension of some aspects of EU membership for a Member State – is highly political, with a very limited role for the EU courts, and is very difficult to apply. However, in the last year or so, ‘ordinary’ EU law has been used to challenge Member States for such breaches instead. This blog post is an overview and discussion of how this alternative process works. A third blog post will discuss the broader constitutional dynamics and historical context of sanctioning Member States.

The EU court process

Before looking more at the details of how ordinary EU law is being used to address general concerns about human rights and the rule of law, it’s necessary to summarise the key features of the relevant parts of the CJEU’s jurisdiction.

First, the infringement procedure allows the Commission (or a Member State) to take a Member State to the CJEU to argue that it is infringing EU law as such. The Court’s ruling in such a case is binding on the Member State concerned, but does not strike down a national law as such. If requested, the Court can order interim measures against a Member State while such a case is pending.

 

Secondly, the ‘preliminary ruling’ process (Article 267 TFEU) provides that any national court can ask the CJEU about the interpretation of EU law, if necessary to decide a case pending before it. These latter cases often concern an individual arguing that a Member State has not applied EU law correctly. The CJEU’s answers to the questions are binding on the national court, which resumes its proceedings after the CJEU’s judgment and decides on what remedy to apply – which could involve disapplying national law. 

Compared to Article 7, these are not just different processes (judicial, rather than essentially political) with a different remedy, but have in principle a much narrower subject-matter: the application of EU law as such, not the values of the European Union (as discussed in the first blog post). It’s literally the difference between building a bypass without doing an environmental impact assessment, and locking up the leader of the opposition. (Of course it’s always possible, as an homage to Douglas Adams, that an unauthorised bypass construction turns out to be an ironically clunky foreshadowing of more drastic developments to come).

Having said that, as I noted in the first blog post, there are times when an issue falls within the scope of both ordinary EU law and general human rights breaches. First of all, in some cases there are very specific links between the Article 7 process and ordinary EU law issues. Secondly, there are cases concerning the general protection of human rights and the rule of law where the Article 7 process and the ordinary EU law process can and do run in parallel, as the CJEU implicitly confirmed in June in its first ruling on Polish judicial independence (discussed further here). (See also the Advocate-General’s opinion in a further pending case against Poland, para 73). I’ll examine these two categories of cases in parallel.

Specific links: Asylum and the European Arrest Warrant

The two areas where specific links already exist between the Article 7 process and ‘ordinary’ EU law are asylum and the European Arrest Warrant.

Asylum

As regards asylum, the explicit link is not with EU asylum legislation, which concerns asylum applications by non-EU citizens – although systematic human rights breaches can have an impact there (see below), but to the protocol to the EU Treaties, which in principle rules out asylum claims by EU citizens.  

According to this protocol, since human rights are well-protected in the EU, ‘Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters’. Therefore, asylum applications by EU citizens ought to be rejected automatically in other Member States except where: (a) a Member State derogates from the ECHR on an emergency basis pursuant to Article 15 ECHR; (b) ‘if the procedure referred to Article 7(1) of the Treaty on European Union has been initiated and until the Council, or, where appropriate, the European Council, takes a decision in respect thereof with regard to the Member State of which the applicant is a national’; (c) ‘if the Council has adopted a decision in accordance with Article 7(1) of the Treaty on European Union in respect of the Member State of which the applicant is a national or if the European Council has adopted a decision in accordance with Article 7(2) of that Treaty in respect of the Member State of which the applicant is a national’; or (d) if a Member State decides to consider an asylum application unilaterally in an individual case, subject to certain limits.

Of these four cases, the second and third explicitly link to the Article 7 process. In short, asylum applications by EU citizens are admissible either if a ‘yellow card’ sanction process is pending, or if the EU institutions have issued either a yellow card or a red card to a Member State. As discussed in the first blog post in this series, while no yellow cards or red cards have ever been issued, a yellow card process is pending against both Poland and Hungary. It follows that Polish and Hungarian citizens can already apply for asylum in other Member States – a surprisingly underappreciated point.

One reason that this possibility has been overlooked is because of the parallel existence of free movement of persons. There’s no Iron Curtain across the EU, far from it: Poles and Hungarians who are annoyed with their governments can simply move to another Member State if they meet the fairly liberal criteria to move under free movement law, and doubtless some disgruntled Polish and Hungarian citizens have moved within the EU (or to non-EU countries, on the basis of those countries’ immigration laws) for such reasons.  

The relevance of the possibility to make asylum claims would only apply in limited circumstances: where the person concerned moved beforehand (see a CJEU judgment from last year on a Croatian citizen with refugee status, discussed here); where the citizen does not qualify under free movement law because of lack of a job or support; where a transitional restriction on free movement after accession to the EU applies; or where the EU citizen is resisting a European Arrest Warrant (which was indeed the reason why the asylum protocol was originally added to the Treaties in the 1990s in the first place: to override asylum claims which were being made in order to defeat extradition requests).   

In the event of a crisis involving many thousands of EU citizens fleeing a Member State (cf Hungary 1956), the Protocol would come into its own, as many of those concerned would lack jobs or support. Odd as it might sound, EU asylum law would not apply to such a case, since it only applies to non-EU citizens; there would perhaps be some ad hoc arrangements quickly agreed to determine responsibility and eligibility, possibly applying EU asylum law by analogy.

European Arrest Warrant

So far, the CJEU has not been asked about the asylum protocol. However, it has been asked many times about the European Arrest Warrant (EAW) and human rights. Some of these cases concern detention conditions (see the line of cases discussed here), or independent prosecutors (see discussion here), but one judgment, the LM ruling of 2018 (discussed here), specifically addresses the application of the EAW where there are broader concerns about the rule of law in the State issuing warrants (in this case, Poland).  

According to the CJEU in that case, the preamble to the EAW law, which states that this law can only be suspended if an Article 7 ‘red card’ is issued, meant that the courts had to defer to the absence of a decision by the EU’s political institutions, and could not suspend the law as a whole by themselves. However, the courts could still consider whether there was a breach of the rule of law in individual cases, taking account of the arguments about a systemic problem with the rule of law in the issuing State which had been put before the EU institutions in a pending ‘yellow card’ proceeding (which was already underway against Poland).

Systematic human rights problems and ordinary EU law

The most important group of cases on this point relate to the independence of the judiciary, and consist largely (but not entirely) of cases concerning Poland. In its June judgment on the first of these cases, an infringement action concerning early retirement ages for the Supreme Court (discussed here), the Court of Justice confirmed that the requirement of respect for judicial independence is inherent in Article 19 TEU, which describes the EU judicial system, including the role of national courts. In doing so it clarified its earlier judgment on the Portuguese courts (discussed here), in which concern about judicial independence arose in the context of salary cuts which were the consequence of austerity linked to EU law.

Crucially, in this first judgment about Poland, the Court confirmed that no specific link to a particular EU law is necessary in order to argue that a Member State has infringed the principle of judicial independence. In effect, Article 19 TEU is a free-standing rule of EU law: arguments about judicial independence are inherently linked to specific EU laws, because EU law depends upon an independent national judiciary for its enforcement. However, the Court did not clarify whether Article 19 TEU only applies where there is a systematic problem with judicial independence (as the Advocate-General’s opinion argued), or could also be invoked in disputes about a specific incident.

A second infringement case against Poland, concerning early retirement ages for the ordinary courts, is also pending. An Advocate-General’s opinion in this case argues that the Commission’s claims are mostly well-founded, along similar lines to the first judgment (update: the Court’s judgment in this case, ruling against Poland, was released on November 5). A third batch of cases, referred from the national courts, concerns judicial disciplinary proceedings. In this case, an Advocate-General’s opinion argues that the case is linked to specific EU law, rather than Article 19 TEU as a free-standing rule, but that in any event Poland is again breaching EU law. The remedy is for the national courts to disapply the offending national law if necessary (judgment is due November 19). A fourth batch of cases might be inadmissible, in the opinion of an Advocate-General. A third infringement case, with a request for expedited proceedings, was brought in October. Furthermore, a number of other cases referred from Polish courts are pending, as summarised here.

A number of cases concerning specific EU law points have been brought against Hungary. In particular, the Commission has brought infringement actions concerning: the independence of the central bank (withdrawn), age limits for judicial retirement (successful; linked to age discrimination law, not Article 19 TEU as such), independence of the data protection authority (successful; discussed here); the removal of the Central European University (pending; an Advocate-General’s opinion is due in November); NGO funding (pending); systematic problems with the asylum system (pending); and withdrawal of food from irregular migrants (at the ‘reasoned opinion’ stage). These cases don’t explicitly raise systemic arguments about Hungarian protection of the rule of law – but their sheer volume, and the broader political context, notably as regards the independence of regulators, reflects some of the broader concerns that led the European Parliament to trigger the Article 7 process against Hungary.  

As regards Romania, a series of recent cases sent to the CJEU query whether the post-accession process of checking Romanian compliance with its obligations related to civil and criminal judicial cooperation has some legal effect, in order to address concerns about the rule of law in that country.

Moving away from specific countries, issues arise regarding EU funding. Should Member States with a questionable record in protecting the rule of law be hit in the pocketbook? That’s what the Commission suggested in a proposal relating to the next multi-annual EU budget, which would sanction Member States financially if a systemic deficiency in the rule of law ‘affects or risks affecting the principles of sound financial management or the protection of the financial interests of the Union’.

The EU Council legal service has concerns about the EU’s legal power to adopt this proposal, which have been rebutted by Professors Kelemen, Lane Scheppel, and Pech. The legal service’s view is that the proposal would breach the exclusivity of the Article 7 process. In my view, while I have legal doubts about the notion that the EU has general power to sanction Member States financially for breaches of the rule of law outside that process, this proposal is more tightly drawn than that: it only applies where there is a link between the rule of law deficiencies and the EU’s financial interests. To put it bluntly, it’s possible that corrupt officials or politicians might be shielded by biased judges. In that light, and taking account of the subsequent CJEU judgment finding that a lack of judicial independence is intrinsically linked to the application of EU law, it should follow by analogy that the EU has the power to adopt this proposal. However, it remains to be seen whether it is de facto blocked as part of a broader quid pro quo when agreeing the EU’s next multi-annual budget.  

Comments

As I noted in the first blog post, the use of ‘ordinary’ EU law means to address rule of law concerns, instead of the Article 7 process, could be a means of addressing those concerns by conventional means, given that some perceive Article 7 as a kind of ‘nuclear button’. Certainly it has its advantages compared to the Article 7 process, as it avoids the obvious reluctance of Member States to condemn each other in that context. Its use as a route to ensure the rule of law is strengthened by the CJEU’s willingness to assert jurisdiction over concerns about judicial independence more broadly. However, outside specific links with EU law and the issue of judicial independence, it might prove hard to use the ordinary EU legal system to deal with a number of concerns about the political system in a Member State besides those issues.

There’s also a risk that once national courts are ‘packed’, it’s too late to expect them to send questions to the Court of Justice. The Commission can still bring infringement actions, but these have less direct impact on the national legal process. And the Commission could in turn be ‘captured’ by those deferential to governments. At present, there are robust challenges to Member States as regards the rule of law via both national courts and the Commission – but it took awhile for the Commission to get going, and its willingness to be active in this field cannot be taken for granted.

If both national courts and the Commission are ‘captured’, there might still be some pressure from the courts of other Member States. But, for instance, placing indirect pressure via EAW cases has its limits: the CJEU has ruled out a general suspension of the EAW system except where Article 7 has been invoked, and anyway 'we won’t send you these fugitives' may not be too much of a threat; the issuing Member State might just think 'Fine, you’re welcome to them'. It might be legally difficult (for instance, due to lack of jurisdiction) or expensive for the requested State to try the fugitives instead, and in any event if the issuing State has problems with the rule of law, how could one trust a sentence handed down there, or evidence supplied by its legal system for the purpose of a trial in the requested State instead?  

So addressing the rule of law by conventional means has its strengths, but also its limits. And either Article 7 or the use of ordinary EU law raises more fundamental questions about the nature of the EU and its relations with Member States – to which I will return in the final blog post in this series.

Barnard & Peers: chapter 9

Photo credit: Steve Peers

Unfinished Business: The European Parliament in the negotiations for reform of the Common European Asylum System

Salvo Nicolosi (RENFORCE - Utrecht Centre for Regulation and Enforcement in Europe)

While a new European Union legislature is about to start on 2 July 2019, it is not certain to what extent the new European Parliament will inherit and continue the work of the previous one in one of the most delicate areas under reform, such as the Common European Asylum System (CEAS). The whole reform package has been put into “unfinished business,” according to rule 229 of the Rules of Procedures of the European Parliament. This means that at the end of the legislature all dossiers that have not been voted at the plenary shall be deemed to have lapsed. While arguing that, despite some points of concerns, the European Parliament made a significant contribution especially as regards the reform of the Dublin Regulation and that departing from such a position will be a misstep for the new European Parliament, the evolving role of the European Parliament in the past and current negotiations for the CEAS will be considered.

The State of Play of the Negotiations

In an attempt to tackle the structural shortcomings of the CEAS, the European Commission adopted two packages of proposals for the future CEAS regulatory framework (Nicolosi, 2019). A first package adopted on 4 May 2016 comprises the proposals to recast the Dublin Regulation (COM/2016/270), Eurodac Regulation (COM/2016/272) and a proposal aimed at establishing a EU Asylum Agency (EUAA) that will replace the current European Asylum Support Office (EASO) (COM /2016/271). A second package was adopted on 13 July 2016 and includes a proposal for a Regulation repealing the Qualification Directive (COM/2016/466), a proposal for a Regulation repealing the Procedure Directive (COM/2016/467), a proposal to recast the Reception Directive (COM/2016/465) and a proposal for a Regulation establishing a EU Resettlement Framework (COM/2016/468). Provisional compromises have been concluded between the Council’s Presidency and the European Parliament’s rapporteurs on five of the seven proposals but, at the end of the eighth legislature no progress was registered, and the reform is in a stalemate, especially owing to the difficulties to find an agreement on the reform of the Dublin Regulation. Nonetheless, while the Council has not yet managed to come up with a concerted approach, the European Parliament submitted “the boldest official proposal to amend the Dublin system to-date” (Maiani, 2017): the Wikström Report.

The European Parliament as a Forward-Looking Negotiator

Since the entry into force of the Lisbon treaty, the European Parliament has played a crucial role as a co-legislator in the area of asylum. Several authors have welcomed in general such an expansion of powers (Monar, 2011) for an institution that for many years during the European integration process has acted as a consultative body. While its contribution was rather limited to the adoption of the first generation of legislative measures in the field of asylum (1999-2005), which were adopted by unanimity by the Council on the basis of Article 63 of the Treaty on the European Community, the European Parliament distinguished itself as a strategic negotiator and forward-looking legislator during the reform that resulted in the second generation of EU asylum legislation (2008-2013).

In particular, before the end of the sixth term, in May 2009 the Parliament strategically decided to finalise its first reading position at the plenary to leave its imprint on the follow-up during the next legislative term. As has been highlighted (van de Peer, 2016: 57), it was rather exceptional to adopt first reading positions without trying to negotiate a first reading agreement with the Council, as it has been doing during the current phase of reform, in which the LIBE Committee has been seeking to pre-agree a text with the Council before formally adopting its first reading position at the plenary. Moreover, as regards the Dublin Regulation, the European Parliament had already called for a new legislative proposal to put in place by the end of 2011 to replace the provisions on the suspension of transfers proposed by the Commission (COM/2008/820, Art. 31) when  a  Member  State  was  faced  “with  a  particularly  urgent  situation  which  places  an  exceptionally heavy burden on its reception capacities” and suggesting the adoption of “legally binding  instruments to ensure greater solidarity  between Member  States” (EP-PE_TC1-COD(2008)0243, Recital 27), including a relocation mechanism for the benefit of Member States in situations of emergency (Ibid, Art. 32 (2) 11 b).

…Campaigning for Horizontal, Vertical and Reciprocal Solidarity

This emphasis on solidarity is even more visible in the amendments to the current European Commission’s proposal to recast the Dublin Regulation. Departing from the Commission’s proposal (COM/2016/270), which has designed a model of solidarity based on emergency-driven relocations, the Wikström Report deserves the credit of adding another dimension of solidarity to the horizontal and inter-State one, which has been under consideration and abundantly discussed (inter alia Tsourdi, 2017).

Such a new dimension of solidarity, which can be considered vertical, aims to turn the Dublin system into a model which is not only fair to the Member States but also to the asylum seekers. In an attempt to redesign the allocation criteria under the Dublin mechanism, the Wikström Report proposes a relocation mechanism that is supposed to work permanently with a focus on asylum seekers’ genuine links. These include family ties but also previous legal residence or educational diplomas.

Accordingly, the Member State of first arrival has the duty to register the applicants, filter out those representing a risk for security or whose application is manifestly unfounded and determine the transfer of the other applicants in line with any relevant genuine link. On the contrary, if no relevant link is available, applicants will be relocated though the automatic allocation mechanism to one of the four Member States which have received the lowest number of applicants in relation to their fair share. The fair share is calculated on the basis of the GDP and the population to ensure that larger and wealthier countries will have a larger share. For the first time applicants will be given the option to choose among the four less burdened Member States. Also, another example of vertical solidarity refers to the possible group transfer of a maximum of 30 applicants travelling together. As has been emphasised, “the logic of these amendments is to encourage persons to apply in the first State of arrival by offering the prospect of being transferred to a desirable destination” (Maiani, 2017). All transfers are to be operationalised by the future EU Asylum Agency within two weeks from the final transfer decision and the costs should be borne on the general budget of the EU.

Ultimately, in order to ensure reciprocal solidarity, instead of a solidarity fee, as proposed by the Commission, the European Parliament proposed that, if a Member State does not fulfil its obligations of registration or participation in the allocation mechanism, it shall not be permitted to use EU funds to finance the return of third-country nationals to third countries.

A too Ambitious Reform for a still Weak Legislator?

The European Parliament has admittedly distinguished itself as being “revolutionary” in suggesting for the first time the redesign of the Dublin Regulation’s criteria. The amendments contained in the Wikström Report constitute a valuable stepping stone from which the future negotiations can resume. On the basis of Rule 229, the new Parliament’s Conference of Presidents decides on whether to resume or continue the consideration of unfinished legislative proposals. While the practice shows that the European Parliament usually resumes the pending dossiers, the question still remains how effective it is as a co-legislator. The former negotiations for the CEAS show the political unwillingness of the Member States to overhaul the Dublin system. During the adoption of the second phase legislation, Member States were very reluctant in approaching the European Parliament as a co-legislator, especially as regards the reform of Dublin. Still, the current reform lays in stalemate, because all proposals to depart from the current system of responsibility allocation lack the necessary support and politically cannot reach consensus within the Council. This is also reflected in the dramatic emphasis on externalization (EUCO, 2018).

Two general recommendations can be therefore sketched for the future European Parliament. First, the Wikström Report is a valuable stepping stone for the next round of negotiations, but improvements are necessary because, as has been stressed, it designs a system which is far from being practically feasible (Maiani, 2017). This is in particular due to the fact that the permanent relocation will determine a massive number of transfers with the risk that a misfunctioning in their smooth operationalisation can create undesirable deadlocks. It has been suggested renouncing this ambition of large-scale transfers and establishing responsibilities entirely on genuine links (Maiani, 2017). These are remarkable inputs, but perhaps, as a second recommendation, applicants’ choices can be better weighed with a more principled approach to the integration potential in the host society, especially in terms professional life and social inclusion. This means that transfers can be arranged based on the specific needs Member States might have in their labour market. All in all, what refugee law requires is empowerment: allowing refugees to start a new life in dignity.

Barnard & Peers: chapter 26

JHA4: chapter II:5

Photo credit: euractiv.com

Brexit, asylum and the rights of the child: clarification from the CJEU

Professor Steve Peers, University of Essex

What effect does Brexit have on asylum issues? That was one of the issues in a recent judgment of the CJEU, responding to a request from the Irish High Court which apparently affected a number of cases pending in Ireland. The judgment further addressed issues relating to the rights of child asylum-seekers, and the degree of discretion a Member State has under the EU’s Dublin rules on allocation of responsibility for considering asylum applications.

Judgment

The case concerned a family of three asylum-seekers. Two had previously held visas in the UK, and the third was their child, born in the UK. When the UK visas expired, they travelled to Ireland, and applied for asylum there.  The Irish authorities decided that the UK was responsible for the claim, and requested the UK to take charge of the asylum seekers; the UK accepted.

Also the Irish authorities refused to apply the ‘sovereignty’ clause in the EU Dublin rules, which gives every Member State the option to decide whether to take responsibility for an asylum application even if that Member State would not normally be responsible for it. The asylum seekers objected to this due to health issues with two family members and the imminence of Brexit, and appealed to the High Court, which asked the CJEU several questions about applying the Dublin III Regulation in these circumstances.

First, the CJEU ruled that it was irrelevant that Brexit is pending, applying its previous judgment (discussed here) in the context of the European Arrest Warrant, that EU law remains fully applicable to the UK until Brexit Day. Equally, the CJEU repeated its prior case law (see, for instance, Halaf) that the ‘sovereignty’ clause left ‘absolute discretion’ to each Member State to decide when to implement it. It followed that the Member State was not obliged to apply this clause purely because Brexit is pending.

Second, the CJEU ruled that it did not breach EU law for the decision on responsibility under the Dublin rules to be made by one part of the Irish government (the Refugee Applications Commissioner), while the decision on the sovereignty clause was left to another part of the government (the Minister for Justice and Equality). In the Court’s view, there was nothing in the Dublin III Regulation to require these decisions to be made by the same part of the national administration, or require any specific part of the administration to make those decisions. Indeed, the Regulation refers to ‘authorities’ in the plural at several points.

Third, the CJEU ruled that the general reference in the Dublin III Regulation to the ‘best interests of the child’ did not limit Member States’ discretion as to whether or not to apply the sovereignty clause.

Fourth, in the Court’s view there was no right to a separate appeal against the decision not to apply the sovereignty clause. Rather, the Dublin III Regulation only required an ‘appeal against a transfer decision, or a review, in fact and in law, of that decision, before a court or tribunal’. This did not ‘expressly’ extend to an appeal against the refusal not to apply the sovereignty clause, and the Court refused to find an implied right of appeal in such cases, because ‘the objective of the rapid processing of applications for international protection and, in particular, the determination of the Member State responsible, underlying the procedure established by the Dublin III Regulation…discourages multiple remedies’. The EU Charter principle of effective judicial protection was not infringed, because the refusal to use the sovereignty clause could always ‘be challenged at the time of an appeal against a transfer decision’.

The Court added more on Brexit in this context, noting that ‘the mutual confidence and presumption of respect, by the Member States, for fundamental rights, continues in full force and effect in [the UK] until the time of its actual withdrawal from the European Union.’ While an asylum transfer under the Dublin rules, following the Court’s case law, cannot take place if ‘there are substantial grounds for believing that that notification would result in a real risk of that applicant suffering inhuman or degrading treatment in that Member State, within the meaning of Article 4 of the Charter’, the notification of leaving the EU ‘cannot, in itself, be regarded as leading to the person concerned being exposed to such a risk’.

Explaining its reasoning, the Court referred to the previous case law on the assumption that States part of the Dublin system – including non-EU States (Norway, Iceland, Switzerland and Liechtenstein) – ‘observe fundamental rights, including the rights based on the Geneva [Refugee] Convention and the 1967 Protocol, namely the principle of non-refoulement, and on the ECHR, and, therefore, that those Member States can have confidence in each other as regards respect for those fundamental rights’, given that all these States are parties to the two Conventions and the 1967 Protocol to the Refugee Convention. In fact:

the continuing participation of a Member State in those conventions and that protocol is not linked to its being a member of the European Union. It follows that a Member State’s decision to withdraw from the European Union has no bearing on its obligations to respect the Geneva Convention and the 1967 Protocol, including the principle of non-refoulement, and Article 3 ECHR.

Finally, the CJEU ruled that the Dublin III Regulation creates an assumption that the best interests of the child mean that the child’s situation is indissociable from that of its parents. Indeed, this is explicitly set out in the Regulation. The Court set out the consequence that ‘it is only where it is established that such an examination carried out in conjunction with that of the child’s parents is not in the best interests of that child that it will be necessary to treat the child’s situation separately from that of its parents.’

Comments

The Court’s ruling on Brexit is unsurprising in light of its previous ruling on the UK remaining covered by EU law until Brexit day. There are no direct implications of this judgment for what happens after Brexit day as regards the UK and EU asylum law, particularly the Dublin rules – an issue which I discussed recently here. However, the Court’s reference to non-EU countries participating in the Dublin rules on the condition that they are parties to the ECHR and the Refugee Convention reaffirms that there is no EU law requirement for non-EU countries to participate in the rest of EU asylum law in order to participate in the Dublin system. On the other hand, UK withdrawal from the ECHR and/or the Refugee Convention might make cooperation with the EU in this field (and, as regards the ECHR, other fields) more difficult. 

Of course, the EU and UK might nevertheless be unable to reach agreement on the UK’s post-Brexit (or post-withdrawal agreement transition period) connection with the Dublin rules for political reasons.  As I have pointed out already, the EU/UK political declaration on their future relationship says nothing about asylum.

As for the sovereignty clause issue, the Court’s ruling leaves intact the Irish government’s arrangements for dealing with that clause separately from determination of responsibility for asylum claims, and also leaves that government free to refuse to apply the sovereignty clause without facing an immediate appeal. While that refusal could still be challenged subsequently, as part of a challenge to a transfer decision, it is not clear what substantive challenge could be made to such a refusal, as a matter of EU law – given that the Court re-emphasised the total discretion of a Member State when applying the clause, and added that even the obligation to consider the best interests of the child has no impact upon that discretion.

However, presumably it should be possible in this challenge to raise issues of national law as regards the exercise of that discretion – to argue whether any national law procedural or substantive rules governing the exercise of the discretion were correctly applied, and in particular whether the decision was in compliance with the national constitution.  

Finally, it should be recalled that the 2016 proposal to redraft the Dublin rules in light of the perceived ‘refugee crisis’ (discussed here) would drastically curtail use of the sovereignty clause, in order to prevent further decisions to take responsibility for large numbers of asylum-seekers (such as the German government’s decision in 2015), due to the consequential impact of such decisions on other Member States. It remains to be seen whether that proposal can be agreed at all – and if so, whether Member States would be willing to give up the considerable freedom of action which the clause gives them.

JHA4: chapter I:5

Barnard & Peers: chapter 26, chapter 27

Photo credit: www.kingsinn.ie

Manufacturing Discontent: Q and A on the legal issues of asylum-seekers crossing the Channel

Professor Steve Peers, University of Essex*

*Supported by an ESRC Priority Brexit Grant on 'Brexit and UK and EU Immigration Policy'.

Cynical politicians, aided by an uncritical media, aim to manufacture a moral panic from a modest number of people crossing the Channel. Be that as it may, 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 might also be useful to address some legal issues here, in a question and answer format.

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 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.  

While some in the 2016 referendum campaign falsely claimed or implied that the UK has no control over its borders as an EU Member State, in fact the UK has 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.

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.

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.

What’s the impact of Brexit?

The UK will still be 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.

If the proposed withdrawal agreement (discussed here) is ratified, it will keep 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, or one or two years later if the two sides decide. (Note to those people freaking out that the withdrawal agreement provides for a ‘Joint Committee’: this sort of body is normal in international treaties, and the Joint Committee can only take decisions if the UK government and EU side have jointly agreed). The UK will retain 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).

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 declaration on the future relationship between the UK and EU (which I 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.

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.

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.

Barnard & Peers: chapter 27, chapter 26

JHA4: chapter I:5

Photo credit: whitecliffsofdover.co.uk