A Pyrrhic victory? The ECJ upholds the EU law on relocation of asylum-seekers

Professor Steve Peers

How should the EU deal with the perceived ‘migrant/refugee crisis’? It has done a number of things, but back in September 2015, when the numbers of arrivals were peaking, it did something truly remarkable – requiring Member States to relocate 160,000 asylum-seekers from the ‘frontline’ states of Italy and Greece, which were bearing most of the burden of new arrivals.

In fact, this took the form of two separate decisions, as I discussed in detail at the time. The first decision was relatively uncontroversial, since it concerned only 40,000 people and Member States had agreed to admit them by consensus. But the second decision, concerning the other 120,000 people, was adopted against the objection of several Member States and set out mandatory quotas for admission. This led to legal action by Slovakia and Hungary to challenge this decision before the ECJ (see discussion of the Slovak challenge here).

This week, the ECJ ruled against this legal challenge, following soon after the opinion of its Advocate-General, who took the same view. As we shall see, this case brings into sharp relief the conflict between effectiveness and legitimacy in EU law – and indeed between effectiveness as a legal principle and practical effect on the ground.

The Court’s judgment

The Court gathered the legal arguments into three main areas: the ‘legal base’ (ie whether the EU had the power to adopt the second relocation decision at all); the procedure followed to adopt the decision; and the substance of the decision, in particular as regards the principle of proportionality.

Legal base

The ‘legal base’ for the adoption of the decision was Article 78(3) of the Treaty on the Functioning of the European Union (TFEU). This clause has been around since the Maastricht Treaty, being amended by the Amsterdam and Lisbon Treaties; but it had never been used before September 2015. It says that if ‘one or more Member States’ face ‘an emergency situation characterised by a sudden inflow’ of non-EU citizens, the Council (Member States’ interior ministers) may ‘adopt provisional measures’ to benefit those Member States, on a proposal from the Commission after consulting the European Parliament (EP). The default rule of qualified majority voting in the Council implicitly applies. So do the opt-outs for the UK, Ireland and Denmark.

First of all, the Court rejected the argument that the relocation decision was a ‘legislative act’, sticking to the strict definition of legislative acts set out in the Treaties. In short, the decision was not a legislative act because the Treaty doesn’t define it as one. It followed from this that there was no obligation for the Council to consult national parliaments or to meet in public when adopting the decision.

Next, the Court ruled that it was possible for this non-legislative act to amend existing legislation, namely the Dublin III Regulation on responsibility for asylum-seekers. Taking a broad view of the power conferred by Article 78(3), ‘provisional measures’ could amend legislative acts for a limited period, as long as they do not amend legislation permanently. That was the case here, since the decision only applied for two years and related to a specified and limited number of people.

The Court also ruled that the decision was ‘provisional’ in that it only applied for two years. A shorter period might not have been enough time to address the crisis, and the previous limitation to six months had been removed when the Treaty was amended, suggesting an intention by Treaty drafters to give the EU more flexibility. While anyone who obtained refugee status would in principle keep that status after the decision ceased to apply, that did not mean the decision wasn’t provisional, since obtaining long-term status is inherent in the idea of asylum policy. The amount of time it might take to adopt legislation by comparison was irrelevant.

Then the Court ruled that the influx of asylum-seekers was sufficiently large to count as ‘sudden’ for the purposes of Article 78(3), and the link between the influx of people and the emergency was strong enough to say that that emergency was ‘characterised’ by the influx. 

Procedural issues

First, the Court rejected the argument that the decision breached the guidelines set by the European Council (Member States’ leaders), which have a specific power to set such guidelines as regards Justice and Home Affairs (JHA) law. It pointed out that those guidelines only related to the first, uncontested, relocation decision, then went on to point out that the European Council could not constrain either the Commission’s power to propose measures or the Council’s power to adopt them by a qualified majority. As for the alleged breach of the EP’s prerogatives, while it must be reconsulted if there is an essential change to the Commission’s proposal – and the removal of Hungary from the list of beneficiaries was such an essential change – it had been informed of that essential amendment to the text before it voted.

Moreover, the Commission had consented informally to the Council’s change to its text – which is a requirement for the Council to vote by qualified majority. Also, the Court took a flexible view of the rules on languages used in the Council. Only the main texts under consideration, not all amendments to them, need to be available in all EU languages.

Substantive issues

The Court rejected the arguments that the decision was not suitable to obtain its objectives. True, as Commission reports have pointed out, not many asylum-seekers have actually been relocated, but that could not be foreseen at the time – and that was implicitly partly the fault of the plaintiff Member States for not implementing the decision in practice. (The Advocate-General’s opinion dismisses this “I killed my parents, give me sympathy as a poor orphan” line of argument more bluntly).

In the Court’s view, the Council could not be limited to financial support alone and so had the power to set mandatory quotas against Member States’ wishes. Also the Court claimed that the EU’s existing temporary protection Directive (which was adopted in 2001 to deal with future crises, but never actually used) could not have worked as an alternative, since it only provided for protection where asylum-seekers are located – so implicitly did not provide for relocations between member States.

Next, the Court rejected Hungary’s argument that given the large numbers of asylum-seekers it was receiving, it should not have been allocated any more – given that Hungary had expressly argued that it did not want any relocation of asylum seekers from its territory, it was in effect estopped from arguing that it was overburdened that it could not accept any more of them. (The Opinion sets out the hilarious argument that while Hungary ‘continues to form part of the Member States that support’ Italy and Greece, it ‘does so in a different way from the other Member States’ by, er, not actually helping Italy and Greece at all.)

Furthermore, the Court rejected the argument that the EU rules violated the Geneva (Refugee) Convention by potentially forcing asylum seekers to leave the country where they were located, pointing out that this did not subject them to refoulement to an unsafe country but only changed which Member State their application for asylum would be considered by.

Finally, the Court rejected Poland’s arguments as an intervener. In particular, the argument that Member States which are ‘virtually ethnically homogeneous, like Poland’ should not receive migrants was rejected, both because it infringed the principle of solidarity and because considering ‘the ethnic origin of applicants for international protection’ would be ‘clearly contrary to EU law and, in particular, to Article 21 of the Charter of Fundamental Rights of the European Union’, which guarantees non-discrimination on grounds of (among other things) ethnic origin.

Comments

The Court’s judgment is suffused by the principle of solidarity between Member States on asylum and immigration matters, as set out in Article 80 TFEU (the Advocate-General’s opinion, even more so). To that end, it gives the EU broad powers, and wide discretion to use them, to address the perceived crisis. 

Most of the Court’s arguments are convincing. It would indeed be hard to address a large influx of people without amending EU legislation temporarily, given the wide scope of that legislation and the broader context of establishing a ‘common European asylum system’.  But the Court is right to ensure that this power is not unlimited, by insisting that any emergency measure can only be temporary and limited in scope. This means that any future measure more ambitious than the 2015 decision might be challenged for going beyond the limits set out by the Court. 

Note that the Court was not asked if Article 78(3) decisions can amend the Treaties temporarily, since the contested decision did not do so. The answer must surely be no, given the hierarchy of norms in EU law. So the general rules on EU asylum law set out in Article 78(1) TFEU – including the obligation to respect non-refoulement, the Geneva Convention, and other relevant (human rights) treaties – continue to apply when emergency measures are adopted. (This is implicitly confirmed by the Court’s willingness to consider the validity of the decision in light of the Geneva Convention). Article 78(3) cannot therefore be a route to address perceived crises by means of (for instance) detentions, interceptions or expulsions which would violate that Convention or the non-refoulement rule, or which would otherwise breach human rights law – including the EU Charter of Rights, which has the ‘same legal value’ as the Treaties.

Nor was the Court asked about the separate proposal to amend the Dublin III Regulation to set up a permanent system for addressing emergencies. This has a different legal base than Article 78(3), so perhaps an outvoted Member State could re-run the arguments that failed in this week’s judgments. However, the Advocate-General’s opinion supports the legality of this proposal too.

The Court’s rulings on the decision-making issues are also convincing, and are an implicit rebuke to those non-lawyers who argue that the European Council is the fount of all EU power. Then again, given Member States’ unwillingness to apply these decisions in practice, this saga confirms the argument that it is politically unrealistic for the EU to undertake very controversial ‘high politics’ policies – no matter how legally secure they are – without all participating Member States’ consent.

Odd as it may seem, there’s also a possible Brexit relevance to this judgment, since the EU’s negotiation position takes the form of guidelines adopted by the European Council and then negotiation directives adopted by the Council, and the Council ultimately concludes the withdrawal agreement by qualified majority. In the event that a Member State is outvoted when concluding the withdrawal agreement and so challenges the agreement arguing that the reference to the European Council requires acting by consensus, this judgment suggests by analogy that it’s the Council’s power to act by a qualified majority vote which is legally decisive.

On the substance of the legal challenge, it’s notable that the Court misinterpreted the temporary protection Directive, which does provide for potential transfers of beneficiaries between Member States. The real distinction between the two – as the Advocate-General’s opinion points out – is that the Directive makes such transfers conditional on the voluntary consent of Member States, whereas the contested relocation decision sets out mandatory quotas. In any event, there’s nothing in the decision to give priority to the ‘emergency’ route over the ‘temporary protection’ route: it’s the Council’s discretion which path (if any) to choose in the event of a perceived crisis.

It’s also striking that the Court rejected Hungary’s argument about the Geneva Convention, confirming judicially the view long implicit in EU legislation (but contested by some refugee advocates) that sending an asylum-seeker to another country which is sufficiently ‘safe’ to consider their application is not a breach of the Convention. (Cynics might suggest that Hungary advanced this argument in the hope that the ECJ would in fact reject it in these terms). Of course, this begs the question as to when a country is sufficiently ‘safe’ – an issue frequently litigated in the ECJ as regards other Member States but not (yet) as regards non-Member States.

That brings us to the Court’s response to the Polish intervention. The Court didn’t have to respond to that intervention, since it ruled that it was inadmissible. But it clearly wanted to, and did so in the strongest terms, ruling that Poland's argument would breach the principle of non-discrimination on grounds of ethnic origin. The Court’s approach comes across as a kind of ‘reverse dog whistle’ – saying “Get lost, you’re racist” as subtly as it could to a Member State. And it follows from the Court’s ruling on this point that any kind of Trump-like ‘Muslim ban’ would violate EU law too, since the Charter equally bans religious discrimination.

But such arguments won’t convince those with a frenzied obsession about ‘white genocide’, just as ruling that the quotas are legal won’t convince Member States (and not just the plaintiff Member States in this case) to apply the relocation decision, which is about to expire anyway. As noted above, this saga shows the tension between legitimacy and effectiveness in EU law sharply: the Court defends the decision’s legal legitimacy in light of the principle of effectiveness, but that decision’s political legitimacy has been ebbing away since it was first adopted. That latter form of legitimacy was not bolstered by adopting the decision against the opposition of several Member States – and indeed the Court’s ruling has now given them another stick with which to beat the EU in particular and ‘scary Muslim migrants’ more generally.  Meanwhile the EU has taken a different course towards the perceived crisis, working with Turkey and now Libya to reduce the numbers who reach the EU to start with – although nothing will satisfy those who believe that ‘none is too many’.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: Business Insider

Immigration detention and the rule of law: the ECJ’s first ruling on detaining asylum-seekers in the Dublin system

Tommaso Poli, LL.M. candidate in Human Rights and Humanitarian Law at the University of Essex, School of Law.

One of the most controversial issues in immigration law is the detention of asylum-seekers. This issue was not initially addressed by the European Common Asylum System (CEAS), but is now addressed in some of the second-phase CEAS measures (the CEAS consists of the Asylum Procedures Directive, the Reception Conditions Directive, the Qualification Directive, the Dublin Regulation and the EURODAC Regulation).

In particular, the second-phase CEAS measures contain detailed rules on detaining asylum-seekers in two cases:  a) general rules in the Reception Conditions Directive, which were the subject of a first ECJ ruling in 2016 (discussed here) and a recent opinion of an Advocate-General; and b) more specific rules in the Dublin III Regulation, applying to asylum-seekers whose application is considered to be the responsibility of another Member State under those rules. Recently, the ECJ ruled for the first time on the interpretation of the latter provisions, in its judgment in the Al Chodor case.

As we will see, the Court took a strong view of the need for the rule of law to apply in detention cases. Moreover, its ruling is potentially relevant not just to Dublin cases, but also detention of asylum-seekers and irregular migrants in other contexts too.

The rules on detaining asylum-seekers in the context of the Dublin process are set out in Article 28 of the Dublin III Regulation. First of all, Article 28(1) states that asylum seekers can’t be detained purely because they are subject to the Dublin process. Then Article 28(2) sets out the sole ground for detention: when there is a ‘significant risk of absconding’. If that is the case ‘Member States may detain the person concerned in order to secure transfer procedures in accordance with’ the Dublin rules, ‘on the basis of an individual assessment and only in so far as detention is proportional and other less coercive alternative measures cannot be applied effectively’.

Next, Article 28(3) sets out detailed rules on time limits for ‘Dublin detention’; these are the subject of the pending Khir Amayry case. Finally, Article 28(4) states that the general rules on guarantees relating to procedural rights and detention conditions set out in the Reception Conditions Directive apply to asylum-seekers detained under the Dublin rules.

Al Chodor concerned the interpretation of the grounds for detention under Article 28(2): what is a ‘serious risk of absconding’?  The Dublin III Regulation offers some limited clarity, defining ‘risk of absconding’ as ‘the existence of reasons in an individual case, which are based on objective criteria defined by law, to believe that an applicant or a third country national or a stateless person who is subject to a transfer procedure may abscond.’ (Article 2(n) of the Regulation). 

Facts

The case relates to an Iraqi man and his two minor children who were travelling from Hungary in the Czech Republic, without any documentation to establish their identity, with the aim of joining family members in Germany. After stopping the Al Chodors, the Czech Foreigners Police Section (FPS) consulted the Eurodac database and found that they had made an asylum application in Hungary. As a consequence, the Al Chodors were subjected to the transfer procedure according to Article 18(1)(b) of the Dublin III Regulation. In addition, the FPS took the view that there was a ‘serious risk of absconding’, given that the Al Chodors had neither a residence permit nor accommodation in the Czech Republic, while they were waiting for their transfer to Hungary.

So, they placed the Al Chodors in detention for 30 days pending their transfer pursuant to Paragraph 129(1) of the national law on the residence of foreign nationals, read in conjunction with Article 28(2) of the Dublin III Regulation. The Al Chodors brought an action against the decision ordering their detention to the regional Court, which annulled that decision, finding that Czech legislation does not lay down objective criteria for the assessment of the risk of absconding within the meaning of Article 2(n) of the Dublin III Regulation. That Court accordingly ruled that the decision was unlawful. Following the annulment of the decision of the FPS, the Al Chodors were released from custody.

The FPS brought an appeal on a point of law before the Supreme Administrative Court against the decision of the Regional Court. According to the FPS, the inapplicability of Article 28(2) of the Dublin III Regulation cannot be justified by the mere absence in Czech legislation of objective criteria defining the risk of absconding. That provision subjects the assessment of the risk of absconding to three conditions, namely an individual assessment taking account of the circumstances of the case, the proportionality of the detention, and the impossibility of employing a less coercive measure. The FPS has submitted that it satisfied those conditions.

The Supreme Administrative Court was uncertain whether the recognition by its settled case-law of objective criteria on the basis of which the detention of persons pursuant to Paragraph 129 of the Law on the residence of foreign nationals may be carried out can meet the requirement of a definition 'by law' within the meaning of Article 2(n) of the Dublin III Regulation, in so far as that case-law confirms a consistent administrative practice of the FPS which is characterised by the absence of arbitrary elements, and by predictability and an individual assessment in each case. So the Court decided to refer to the European Court of Justice for a preliminary ruling asking whether Article 2(n) and Article 28(2) of the Dublin III Regulation, read in conjunction, must be interpreted as requiring Member States to establish, in a national law, objective criteria underlying the reasons for believing that an applicant for international protection who is subject to a transfer procedure may abscond, and whether the absence of those criteria in a national law leads to the inapplicability of Article 28(2) of that regulation.

Judgment

The Court of Justice first of all ruled that Article 2(n) of the Dublin III Regulation explicitly requires that objective criteria defining the existence of a risk of absconding be defined by the national law of each Member State (paragraph 27-28). Then, determining whether the word ‘law’ must be understood as including settled case-law, the Court reaffirmed that in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it forms part (judgment of 26 May 2016, Envirotec Denmark, paragraph 27).

So with regard to the general scheme of the rules of which Article 2(n) of Dublin III Regulation forms part, the Court, referring to recital 9 of that regulation, states that the regulation is intended to make necessary improvements, in the light of experience, not only to the effectiveness of the Dublin system but also to the protection of fundamental rights afforded to applicants under that system. This high level of protection is also clear from Articles 28 and 2(n) of that regulation, read in conjunction. As regards the objective pursued by Article 2(n) of the Dublin III Regulation, read in conjunction with Article 28(2) thereof, the Court recalls that, by authorizing the detention of an applicant in order to secure transfer procedures pursuant to that regulation where there is a significant risk of absconding, those provisions provide for a limitation on the exercise of the fundamental right to liberty enshrined in Article 6 of the Charter.

In that regard, it is clear from Article 52(1) of the Charter that any limitation on the exercise of that right must be provided for by law and must respect the essence of that right and be subject to the principle of proportionality. Furthermore, it is worth noting that in this ruling the European Court of Justice explicitly aligns its interpretation to the European Court of Human Rights (ECtHR), reaffirming that any deprivation of liberty must be lawful not only in the sense that it must have a legal basis in national law, but also that lawfulness concerns the quality of the law and implies that a national law authorizing the deprivation of liberty must be sufficiently accessible, precise and foreseeable in its application in order to avoid risk of arbitrariness (judgment of the European Court of Human Rights of 21 October 2013, Del Río Prada v Spain, paragraph 125).

The Court then concluded by stating that taking account of the purpose of the provisions concerned, and in the light of the high level of protection which follows from their context, only a provision of general application could meet the requirement of clarity, predictability, accessibility and, in particular, protection against arbitrariness. It follows that Article 2(n) and Article 28(2) of the Dublin III Regulation, read in conjunction, must be interpreted as requiring that the objective criteria underlying the reasons for believing that an applicant may abscond must be established in a binding provision of general application. In the absence of such criteria, the detention was unlawful.

Comments

First of all, the Court’s ruling is likely relevant to the interpretation of other EU measures concerning immigration detention. In the Returns Directive, which inter alia concerns the detention of irregular migrants (as distinct from asylum seekers), the ‘risk of absconding’ forms part of the ground for detention (as well as one of the grounds for refusing to allow the irregular migrant a period for voluntary departure); and it is defined exactly the same way as in the Dublin III Regulation. As for asylum seekers who are detained on grounds other than the Dublin process, a ‘risk of absconding’ is an element of one of the grounds for detention under the Reception Conditions Directive, but is not further defined. But a recent Advocate-General’s opinion notes (at para 73) that this clause aims to prevent ‘arbitrary’ detention, which was a key feature of the reasoning in the Al Chodor judgment. This surely points to a consistent interpretation of the two asylum laws. It follows that arguably the Court’s judgment should be relevant not just to Dublin cases but to any immigration detention of non-EU citizens in any Member State bound by the relevant EU legislation.

Secondly, this ruling has reiterated the principle by which although regulations generally have immediate effect in national legal systems without it being necessary for the national authorities to adopt measures of application, some of those provisions may necessitate, for their implementation, the adoption of measures of applicability by the Member States (judgment of 14 April 2011, Vlaamse Dierenartsenvereniging and Janssens, paragraphs 47 and 48).

Most significantly, the Court has reaffirmed the primacy of Human Rights law in EU asylum law implementation, highlighting that the development of the EU asylum law itself depends on its compliance with Human Rights law. In particular, the ECJ’s ruling in this case first of all reflects the ECtHR’s interpretation of the ‘arbitrariness’ of detention, which extends beyond the lack of conformity with national law. Notably, it states that a deprivation of liberty that is lawful under domestic law can still be arbitrary and thus contrary to the general principles, stated explicitly or implied, in the Convention (judgment of the European Court of Human Rights of 9 July 2009, Mooren v. Germany, paragraphs 73-77).

The Court’s ruling also reflects UN human rights norms. The Human Rights Committee’s General Comment No. 31 related to the nature of the general legal obligation imposed on State parties to the UN Covenant on Civil and Political Rights, which all EU Member States are State parties to, which reads that ‘in no case may the restrictions be applied or invoked in a manner that would impair the essence of a Covenant right’ (paragraph 4). Furthermore, the Human Rights Committee’s General Comment No. 35 points out that “arbitrariness is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality” (paragraph 12, see also HRC, Van Alphen v. Netherlands, paragraph 5.8).

Finally, the Court’s ruling has confirmed the constitutional value of the Charter of Fundamental Rights of the European Union, which assumes a critical value in this historical period, since, as with any constitutional instrument, the more society as a whole is going through difficult times (such as the perceived ‘migration crisis’ in Europe), the more important it is to reaffirm its principles and values.

Likewise Article 52 of the EU Charter states that in no case may restrictions be applied or invoked in a manner that would impair the essence of a Charter right; in the context of detention, a fortiori it can be also affirmed that essential elements of guarantee for that right, as the requirement of lawfulness and non-arbitrariness for the right of liberty, cannot be disregarded in any circumstance. The Al Chodor ruling puts meat on the bones of that fundamental principle.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo: Amygdaleza detention centre in Greece, credit: www.metamute.org

The Dublin system: the ECJ Squares the Circle Between Mutual Trust and Human Rights Protection

By Cecilia Rizcallah, Research Fellow at the Belgian National Fund for Scientific Research affiliated to the Centre of Interdisciplinary Research in Constitutional Law of Saint-Louis University (USL-B) and the Centre of European Law of the Free University Brussels (ULB). The author wishes to thank the Professors E. Bribosia and S. Van Drooghenbroeck for their valuable advice.

Introduction

On Thursday February 16th, the ECJ handed down a seminal judgment in the case of C.K. and others, C-578/16 PPU. This ruling was rendered on a reference for a preliminary ruling from the Supreme Court of Slovenia asking, in substance, whether the risk faced by an asylum seeker of being a victim of inhuman and degrading treatment because of his/her individual situation, shall prevent his/her transfer to another Member State to consider his/her asylum claim on the basis of the Dublin system.

The Dublin System: Cooperation between Member States based on Mutual Trust

The Dublin system, initiated by a Convention signed in 1990 in the city whose name it bears, allocates responsibility for examining asylum applications lodged by third country nationals (TCNs) in the EU, in such a manner that, in principle, only one State has the task of examining each asylum request lodged on the European Union’s territory.  Pursuing harmonisation of Member states’ asylum policies, the Treaty of Amsterdam introduced the competence of the European Community (Article 63 EC; now Article 78 TFEU) to adopt additional measures in order to achieve a Common European Asylum System (CEAS). On that basis, the Dublin Convention was replaced by the “Dublin II” Regulation (Regulation n°343/2003) and then the “Dublin III” Regulation (Regulation 604/2013). Also, a number of directives were adopted in order to set up minimum standards on the qualification and status of refugees and persons with subsidiarity protection (Directive 2011/95/UE), on asylum procedures (currently Directive 2013/32/UE) and on reception conditions for asylum-seekers (currently Directive 2013/33/UE).

The Dublin system, which constitutes a fundamental part of the CEAS, has as its main goals to (i) ensure the access of TCNs to the asylum application procedure and to (ii) rationalise the treatment of asylum applications by avoiding forum shopping and the existence of multiple applications. It therefore establishes a set of criteria which determine which Member State is, in a particular situation, responsible for examining the application of an asylum-seeker. The general rule is that (in effect) the State of first entry into the European Union is the responsible Member State, but there are several exceptions. If another Member State is approached, that state can either, on the basis of the Dublin system, automatically transfer the asylum seeker lodging the application to the responsible state, but it can also – and it has a sovereign right to – decide to examine the application itself as it so wish (Article 17, Dublin III Regulation: the “sovereignty-clause”).

It is important to note that the Dublin system is underpinned by the fundamental idea of equivalence of Member States’ asylum systems, presuming, therefore, that asylum-seekers would not benefit from any advantage by having their application examined in a specific country.

Summary of Previous Case Law of the ECJ: Preserving Effectiveness of EU Cooperation, even at the Expense of Fundamental Rights

The automaticity of the transfer of asylum-seekers between Member States, founded on the premise of equivalence, quickly appeared problematic in terms of protection of asylum-seekers’ fundamental rights. Notably due to their geographic situation, some Member States were faced with a high number of arrivals that put their asylum-seekers’ reception infrastructures under pressure, and resulted in degradation of their national asylum systems.

It did not take long before challenges against transfer decisions were being introduced, because of the risks faced by asylum-seekers regarding their fundamental rights in the State which the Dublin system made responsible for examining their applications. One of the first landmark rulings on this issue was handed down by the European Court of Human Rights (ECtHR), in which Belgium was held liable for breaching the European Convention on Human Rights (ECHR) by having transferred an asylum seeker back to Greece on the basis of the Dublin system, while this country, in its examination of asylum applications, was not fulfilling the obligations under the ECHR. The ECtHR noted, in the case of M.S.S c. Belgium and Greece (application n° 30696/09), that Belgium, being aware of, or having a duty to be aware of the poor detention and reception conditions of asylum-seekers in Greece, should have relied upon the “sovereignty-clause” of the Dublin II Regulation, to refrain from transferring this individual to a country where he faced a real risk of becoming a victim of inhuman and degrading treatment in accordance with Article 3 ECHR.

Less than a year later, the ECJ addressed the same issue with the additional difficulty of having the duty to safeguard the Dublin system’s effet utile. In the famous N.S. case (C-411/10), the Court was indeed asked whether “a State which should transfer the asylum seeker [to the responsible Member State according to the Dublin regulation] is obliged to assess the compliance, by that Member State, with the fundamental rights of the European Union”.  In addressing this challenge, the ECJ relied - for the first time in the field of asylum - upon the principle of mutual trust between Member States, founded on the presumption that “all participating States [to the Dublin system] observe fundamental rights”, to conclude that it was inconceivable that “any infringement of a fundamental right by the Member State responsible” would affect the obligations of other Member States to comply with the Dublin Regulation (§82).

To maintain the effectiveness of the Dublin Regulation despite the existence of flaws in national asylum systems, the ECJ innovated by introducing the “systemic deficiencies test”, entailing that a transfer should be prohibited “if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman and degrading treatment, within the meaning of Article 4 of the EU Charter of Fundamental Rights (corresponding to Article 3 ECHR), of asylum-seekers transferred to the territory of that Member State, the transfer would be incompatible with that provision” (§86).

To secure a clear, effective and fast method for determining the Member State responsible for dealing with an asylum application, the ECJ thus opted for a presumption of compliance by Dublin States with fundamental rights which could be rebutted in the presence of a “systemic deficiency in the asylum procedure and in the reception conditions of asylum-seekers” where Member States would be compelled to prevent the transfer (§89). This presumption of fundamental rights’ respect by Member States was subsequently applied by the ECJ in other judgements (C-4/11, Puid and C-394/12, Abdullahi).  In fact, the latter judgment expressly limited both the substantive and procedural grounds on which a Dublin transfer could be challenged.

Heavily criticized, this approach was condemned in Strasbourg with the Tarakhel case (application n°29217/12), in 2014 in which the ECtHR reaffirmed and specified its MSS judgement by ruling that the Dublin system “does not exempt [national authorities] from carrying out a thorough and individualized examination of the situation of the person concerned and from suspending enforcement of the removal order should the risk of inhuman and degrading treatment be established”. 

Stonewalling, one of the ECJ’s arguments against the draft agreement on the accession of the EU to the ECHR (Opinion 2/13) was the ECHR requirement that Member States “check that another Member State has observed fundamental rights, even though EU law imposes an obligation of mutual trust between those Member States” (Opinion 2/13, §194). The Court’s “systemic deficiencies” test was consolidated in the recast of the Dublin Regulation (Regulation 604/2013, Dublin III) whose Article 3(2) states that “where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman and degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible”.

A first move from this case law has recently been observed in another field of EU cooperation, namely in EU criminal law. The question asked to the ECJ was whether detention conditions incompatible with art. 4 of the Charter in a Member State issuing a EAW could allow or oblige the executing judicial authority of a requested Member State to refuse the execution of a European Arrest Warrant (EAW). Once again, the ECJ was faced with the dilemma between securing a EU mechanism based on mutual trust or taking human rights considerations seriously. In its landmark ruling in the case Aranyosi and Căldăraru (C-404/15), the ECJ considered that in the event of “systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention” deficiencies, and only if “there are substantial grounds to believe that, following the surrender of that person to the issuing Member State, he or she will run a real risk of being subject in that Member State to inhuman and degrading treatment, within the meaning of Article 4” (§94), the executing authority will have to postpone the execution of the EAW.

Hence, a two-step analysis has to be carried out by the national judge who must first assess the existence of general or particular deficiencies in the detention system of the requesting state, before examining, in concreto, whether the requested person faces a real risk of being subject to inhuman and degrading treatment. It remained, however, unclear whether the exception to mutual trust provided in Aranyosi and Căldăraru was more or less protective of fundamental rights. Even though a second condition was added, the deficiency requirement seemed softened.

The ruling of the ECJ in C.K. and others: A Welcome Step Towards Reconciliation Between the Dublin system and Human Rights ?

Facts and Question referred to the ECJ

A couple with a newborn child lodged an asylum application in Slovenia whereas Croatia was, according to the Dublin criteria, responsible for examining their application. Noting the absence of systemic flaws in the Croatian asylum system but observing that the mother of the child was in a very bad state of health, the Slovene court asked the ECJ whether the reliance upon the sovereignty clause (Article 17 of Dublin III) could be mandatory for the purpose of ensuring the family an effective protection against risks of inhuman and degrading treatment. In other words, the national judge inquired whether Dublin transfers were only prohibited in case of the existence of systematic deficiencies in the responsible state, subjecting asylum-seekers to risks of violations of Article 4 of the Charter, or whether a transfer also had to be precluded when such a risk was faced due to the specific and individual situation of a particular asylum seeker.

The opinion of the Advocate General

Following the NS and Abdullahi approach, the opinion of Advocate General Tanchev argued that only systemic flaws in the responsible State could require the prevention of a Dublin transfer. Unsurprisingly, he justified his opinion on the principle of mutual trust between Member States and on the need to ensure the effectiveness of the CEAS (§51). He further acknowledged that his position did not meet ECtHR standards but stressed that the EU was not bound by it (§52). He moreover underlined that Article 17 of the Regulation constituted a “discretionary” clause which, by definition, could not be construed as imposing obligations on Member States (§ 67).

The judgment of the Court

The fifth Chamber of the ECJ - quite uncommonly - did not follow the Advocate General’s opinion. To the contrary, the ECJ stated that, besides situations where “systemic deficiencies” exist in the responsible state, any transfer of asylum-seekers shall be excluded where it gives rise to a real risk for the individual concerned to suffer inhuman or degrading treatment, within the meaning of Article 4 of the Charter.  Relying upon Article 52§3 of the Charter, the ECJ recalled that corresponding rights guaranteed both by the Charter and the ECHR should receive the same scope as those laid down by the Convention.

It then quoted Strasbourg’s recent ruling in Paposhvili v. Belgium (application n° 41738/10, § 175) according to which “illness may be covered by Article 3 [of the ECHR], where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible”. Consequently, despite the absence of systemic deficiencies in the Croatian reception conditions of asylum-seekers (§7), Slovenia was required to suspend the transfer due to the fact that it could result, because of the particular medical condition of the immigrant, in a real risk of serious and irremediable deterioration of her health condition (§84). The suspension should, according to the judgement, be maintained as long as that risk exists. On the basis of its ruling in Aranyosi, the Court also stressed that national authorities were required to assess the risk before transferring an individual (§76).

The Court added that if the state of health of the migrant was not expected to improve, the relevant Member State had the possibility to itself examine the asylum application on the basis of the sovereignty clause contained in Article 17§1 of the Regulation (§96). However, this provision does not, according to the ECJ, oblige a Member State to examine any application lodged with it, even when read in the light of Article 4 of the Charter.

The ECJ finally concluded that this holding “fully respected the principle of mutual trust since, far from affecting the presumption of respect of fundamental rights by Member States, it ensures that exceptional situations are duly taken into consideration by Member States” and furthermore, that “if a Member State proceeded to the transfer of an asylum-seeker in such circumstances, the resulting inhuman and degrading treatment would not be attributable, neither directly or indirectly, to the authorities of the responsible Member State, but solely to the first Member State”.

Comments

The ruling of the fifth Chamber seems to introduce a crucial change in the case law of the ECJ regarding the relationship between the principle of mutual trust and the protection of individuals against inhuman and degrading treatment. Instead of putting these two imperatives in competition, the Court seems, for the first time, to obviously acknowledge their necessary interdependence.  By considering that the principle of mutual trust would be enhanced by an effective application of Article 4 of the Charter, the ECJ finally appears to take seriously the fact that this principle is precisely founded on the respect by Member States of EU values including, above all, the principle of human dignity to which the prohibition of inhuman and degrading treatment is closely linked (Article 2 TEU).

It is therefore not only in case of systemic or generalised flaws in the asylum system of a responsible Member State that a transfer may be prevented. Specific and individual considerations of asylum-seekers must be taken into account in order to assess whether he or she could suffer treatment incompatible with Article 4 of the Charter because of his/her transfer. The Court moreover endorses this requirement by holding that in case of failure in addressing this risk, the first Member State will shoulder responsibility for breach of the Charter.

It should however be stressed that, while the first judgements prioritising the principle of mutual trust were delivered by the ECJ Grand Chamber, the ruling in the case at hand was handed down by a Chamber of five judges whose authority could be considered as being weaker. Nevertheless, the ruling follows the general evolution of the case law of the ECJ which already underlined several times, following the last recast of the Dublin regulation, the fact that the changes of the system were “intended to make the necessary improvements, in the light of experience, not only to the effectiveness of the Dublin system but also to the protection afforded applicants under that system” (C-63/15, Ghezelbash, §52) The latter judgment (from June 2016) had already overturned the procedural aspects of the Abdullahi judgment; the CK ruling now overturns the substantive aspects.

This valuable step in favour of asylum-seekers’ fundamental rights protection nevertheless raises a number of practical questions. One could ask first – and this question was already put forward by other commentators – whether the risk of the violation of other fundamental rights than the prohibition of inhuman and degrading treatment must justify an exception to the Dublin distribution of responsibilities and, thereby, to the principle of mutual trust. We think that, given the emphasis put by the Court on the exceptional character of the situation, not any breach of any fundamental rights would prevent Member States to rely upon the principle of mutual trust in order to transfer an asylum-seeker. To the contrary, only very serious risks of violation of absolute fundamental rights (Chapter I of the Charter) would in our view justify a mandatory suspension of the transfer of asylum-seekers.

Additionally, the ruling raises questions as regards the consequences of a suspension. As pointed out by the Court, a Member State would never be obliged to itself assess, on the basis of the sovereignty clause (Article 17.1 Dublin III), an asylum application which falls within the responsibility of another State. What if, because of the individual situation of the asylum seeker, the transfer should be suspended in the long term? The finding of the ECJ could then result in the existence of “refugees in orbit”, asylum-seekers who lose the certainty of having their application examined by any Member State of the Union – something which the Dublin system especially seeks to prevent and that could, in itself, constitute an inhuman and degrading treatment.

Finally, the question of the applicability of this approach to EU criminal cooperation should also be raised. The Court seemed, until its holding in the Aranyosi case, very reluctant to acknowledge any exception to the principle of mutual trust in the framework of the European Arrest Warrant (see, among others, the cases C-396/11 Radu and C-399/11, Melloni). The ruling in C.K. should however, in our opinion, be seen as applicable also in the field of criminal cooperation if such exceptional circumstances are met since the ruling especially relies upon the judgment in Aranyosi and also due to the absolute character of the prohibition laid down in art. 4 of the Charter Now the two lines of case law have been brought together, but they raise parallel questions about the long-term consequences. Indeed, the Court of Justice has already been asked to elaborate on the Aranyosi ruling, in the pending Aranyosi II case. So its ruling in that case may be equally relevant to Dublin cases.

In any case, the change of position of the ECJ seems much more in compliance both with the ECHR and, also, with the constitutional requirements of certain national legal orders. Indeed, the German Constitutional Court did not hesitate, in its judgment of 15 December 2015, to make an exception to the principle of mutual trust, as implemented by the EAW system, in order to protect the right of human dignity, which, according to this ruling, forms part of German constitutional identity.

One can henceforth wonder whether the C.K. and Aranyosi rulings generally overturn the Opinion 2/13 argument based on the principle of mutual trust opposed, among others, by the ECJ against the EU’s draft accession agreement to the ECHR… Either way, this new setting should, without a doubt, have an important impact on today’s and future’s relationships between the EU legal order, on the one hand, with the ECHR and national legal orders, on the other.

Barnard & Peers: chapter 9, chapter 26

JHA4: chapter I:5

Photo credit: Handelsblatt

‘Wisdom and goodness to the vile seem vile’: Towards a third phase of the Common European Asylum System?

Steve Peers*

How to fix the EU’s troubled Common European Asylum Policy? The Commission has given its views today in the form of a discussion paper, with plans for further legislation. Will this fix the problems?

The first phase of the EU’s Common European Asylum Policy was set in place in the form of legislation adopted over 2003-05. The second phase is based on legislation adopted between 2011-13. (For more details, see volume 3 of the Commentary on EU Immigration and Asylum Law, which I co-authored). Today’s communication effectively outlines the plans for a third phase – without actually using that phrase. It examines many facets of EU asylum policy, and also mentions immigration policy. I’ll look at the announced plans in turn.

It’s worth making two general points at the outset. First, the UK is bound by the first-phase asylum laws, but not by the second-phase laws, other than the Dublin rules, Eurodac, and the law setting up the European Asylum Support Agency. It can opt out of any of the third-phase laws, but if it opts out of new laws amending those laws which it’s already bound by, the EU Council could decide to end the UK’s participation in those laws, on condition that operating a different system for the UK is effectively impossible. (Ireland is in broadly the same position).

While it’s sometimes asserted that ‘the EU court controls UK asylum laws’, the UK chose to opt into those first-phase laws, and used its veto to ensure that they were consistent with existing UK law. The only British cases on asylum which have ever reached the EU court have been about the Dublin system. And eventual access to citizenship of a Member State by asylum-seekers is far harder to obtain than some imagine it to be.

Secondly, any proposals the Commission makes will have to be approved by a qualified majority of participating Member States (in the EU Council) and by the European Parliament. Obviously there’s no guarantee of obtaining either in this controversial area.

The Dublin system

The discussion paper devotes the most space to the plans to reform the EU’s Dublin system, currently set out in the Dublin III Regulation. The principal problem with this Regulation is its allocation of responsibility in most cases to the first EU state which the asylum-seeker entered. With its declining economy and a sharp increase in the number of asylum-seekers, Greece cannot handle this burden. Although the EU has already tried to address this problem, in the form of two Decisions relocating some asylum-seekers away from Italy and Greece (discussed here), this has not worked well in the absence of Member State willingness to apply the system: barely 1,000 of the promised 160,000 have been relocated. In addition, the second Decision has been challenged by two cases in the EU Court (see discussion here of one of these cases).

How to address this? The Commission suggests two options: a sort of compensation system that would kick in once a Member State had particular burdens, or a quota system reallocating all asylum-seekers across the EU. The former option is based on the current relocation decisions; it should be noted that the Commission already proposed amendments to the Dublin rules along these lines last September, but there seems to be little interest in this proposal. There could be adjustments to the current Dublin rules (so that responsibility would no longer cease due to lapse of time), and the relocation rules (so that more categories of asylum-seekers were covered, not just those with a 75%+ acceptance rate).

The second option would allocate all asylum-seekers in principle between Member States based on standard rules, with exceptions where there are family links for instance. Where the EU has designated a ‘safe’ country, though, the first Member State of entry would remain responsible, for the sake of efficiency. Obviously the intention here is to keep in place the new rules which aim to return people from Greece to Turkey quickly.

Either way, the Commission suggests possibly repealing the EU’s temporary protection Directive, a law designed to deal with mass influxes that has never actually been invoked to deal with any of them. (On its possible use to deal with the current crisis, see discussion here).

Eurodac

The Commission plans changes to the Eurodac Regulation, which currently requires taking and storing fingerprints of all asylum-seekers and irregular border crossers, mainly for the purpose of checking at a later stage if they have already applied for asylum or where they originally entered (for the purpose of applying the Dublin rules). Currently the database allows police access as well as checking of irregular migrants (separately from the asylum procedure). The Commission plans to make proposals for changes to match the changes to the Dublin rules as well as to make much more use of the system for migration control. This will parallel the smart borders proposals for an entry-exit system (also made today).

Procedures Directive

The intention is to replace the current Directive with a Regulation, setting out ‘comprehensive harmonisation’ and a genuinely ‘common procedure’, which would ‘reduce incentives to move to and within the EU’. There would be new rules on ‘key aspects of the asylum procedure’ which are currently optional, as regards admissibility (ie whether the asylum-seeker had, or should have sought, protection in a non-EU country), ‘the use of border and accelerated procedures’, the treatment of repeat applications, ‘and the right to remain in the territory’ during applications and appeals. This would harmonise the length of the initial application process and the appeals (the second-phase Directive already has common rules on the former issue, although not for the fast-track version of it).

On this point the Commission is particularly keen to harmonise ‘safe country’ rules, both as regards ‘safe country of origin’ (ie is the asylum-seeker safe in her own country?) and ‘safe third country’ rules (should he have applied for asylum elsewhere?). On the first aspect, the Commission wants the EP and Council to agree the proposal it made back in September 2015 for a partly common list (designating the Western Balkans and Turkey as ‘safe’: discussed here). But neither institution has rushed to adopt the Commission proposal. The intention is for more harmonisation relating to countries where many applicants come from. But as I pointed out in my previous analysis this proposal wrongly includes Turkey – despite its dubious human rights record – for cynical political reasons, and does not provide enough safeguards for those who claim may be genuine.

The Commission also wants to harmonise the use of the ‘safe third’ country concept, and set up a process of defining a common list in future. This would avoid awkward problems where differences between Member States divert flows of asylum-seekers or cause a ‘protection lottery’ with divergent decisions for similar cases. But it remains to be seen how these standards are applied. Given that (as discussed here) the Commission and Member States support the absurd designation of  Turkey as a ‘safe third country’ – despite its non-application of the Geneva Convention to most asylum-seekers and evidence of refoulement, unsafe treatment, and low standards – the prospect of further moves in this direction are unappealing.

Qualification Directive

The Commission has been carrying out an evaluation of the qualification Directive (which defines the concept of ‘refugee’ and ‘subsidiary protection’ status, and the rights which each group receive, but there is no mention of that here. The main concerns of the paper are twofold: further harmonisation of the rights received, including ‘differentiation’ of the two types of status, as subsidiary protection is ‘inherently more temporary’. This contradicts the second-phase Directive, which accepted that subsidiary protection was often not temporary and harmonised the two forms of status in most respects: see discussion of the first EU court judgment here. Secondly, protection will be granted ‘only for so long as they need it’.

This means that the Directive will be replaced by a Regulation, and the intention seems to be harmonisation downwards: ‘to reduce both undue pull factors and secondary movements’. There will be a ‘regular check’ to see if protection can justifiably be taken away, although this is consistent with the Geneva Convention, which refers to ‘cessation’ of refugee status when circumstances change in the country of origin. There will be standard rules on identity documents (although note that the Geneva Convention has already provided for a standard travel document for refugees). In the long term, there could be mutual recognition of decisions and a transfer of protection (on the latter issue, see my earlier paper). This reflects the Treaty obligation to create a status ‘valid through the Union’ – although the Commission cannot bring itself to refer to this concept.

Reception conditions

The Commission plans ‘targeted’ amendments to the reception conditions Directive, which governs the day-to-day life of asylum-seekers outside the procedural aspects of their asylum claim.  There’s no detail of these plans but the intention is to ‘reduce incentives to move to Europe’ and within the EU, while still ensuring ‘humane’ treatment.

Reducing ‘secondary movements’

As evident already, a main purpose of the paper is to stop asylum-seekers moving within the EU – a reversal of the usual logic of EU legislation. The paper elaborates further on this, referring to ‘proportionate sanctions’ for those who leave the responsible Member State. This will entail an obligation to send back the asylum-seeker to the responsible State (does that mean the options to consider the application in the Dublin Reg will be dropped?), a fast-track examination procedure without an automatic right to remain during the appeal, detention or restriction of movement, removal of benefits (overturning the judgment in CIMADE and GISTI on this point), and reduced credibility of the claim, on the basis of ‘existing provisions in the acquis’ dealing with last-minute applications. There will also be punishments for those who move without authorisation after obtaining refugee or subsidiary protection status, including a ‘status review’, and the five-year waiting period to obtain long-term residence status will be restarted every time they do so. There will be a common document issued to asylum-seekers, making clear that they cannot leave the responsible Member State except for ‘serious humanitarian reasons’.

The European Asylum Support Office

Currently this EU agency has a modest role supporting national asylum decision-makers. The Commission wants to enlarge its role, allowing it to evaluate Member States’ compliance with asylum standards, and suggesting changes they should make in national practice. If there were no compliance, the Agency could provide ‘enhanced support’, and there would be ‘measures’ to prevent ‘any incentive for Member States or asylum seekers not to respect the rules’. In particular, the Commission would have the power to decide on ‘operational measures’ to be taken by a Member State where the Agency found a breach of asylum standards, as regards case-handling and reception support, linked to the parallel actions by the EU Border Guard. (Obviously the drafters of the paper are thinking of Greece here).

The Agency would also have the power to offer detailed guidance (as it does occasionally already) on the substance of asylum law, with a reporting mechanism and case-auditing. The Agency would also have a key role assessing whether third countries are ‘safe’, giving its opinions to the Commission on this point.  It will also operate the revised Dublin system, on the basis of criteria not leaving it any discretion (it’s not possible to give EU agencies discretionary policy-making powers, according to the EU court).

Finally, the agency would have a reserve of national experts it could call on, and extra financial resources, linked to the new money for humanitarian assistance within the EU. In the longer term, the Agency could be given the role of making first-instance decisions in place of national authorities, although the Commission realistically acknowledges that this prospect is on the far horizon. Indeed, that horizon is darkened by flocks of low-flying pigs.

Safe routes for entry

While much of the paper is focussed on getting the Dublin system to work, this is balanced somewhat by discussion of safe routes for entry. First of all, this refers to existing ‘soft law’: a general recommendation on resettlement (which means the movement of people from non-EU countries to the EU), and the controversial 1:1 deal between Turkey and the EU, in effect ‘trading’ resettlement places for readmission of non-Turkish refugees from the EU (discussed here).

The Commission will build on this to propose (as promised before) EU legislation on resettlement, which will set out a ‘common approach to safe and legal arrival in the EU’ for people who need protection. There will be general rules, addressing admission and distribution, the status of resettled persons, financial support, and punishment for secondary movements between Member States.  These general rules will then be applied in individual cases as regards specific countries or groups of people. For specific countries, resettlement might only be offered on a quid pro quo basis, related to readmission: this echoes the controversial 1:1 deal with Turkey. It should be noted that readmission treaty negotiations are about to start between the EU and Jordan, which is another major host country for Syrian refugees.

The paper also talks about other safe legal routes for entry. Existing laws on admission of workers, students and researchers should be made accessible to refugees, although the Commission makes no commitment as regards EU legislation dealing with that issue. Private sponsorship should be encouraged by developing EU ‘best practice’. The Commission also promises to look at the issue of humanitarian permits. The most obvious way to do this in the near future is by including provisions in the EU visa code, which is currently being amended – as I have previously advocated and as supported by the European Parliament.

Legal migration

The Commission argues in general that the EU needs more legal migration for economic and demographic reasons. It suggests several means to this end. First of all, it plans to amend the EU’s Blue Card Directive on highly skilled workers, to encourage admission and make this law (which has had limited success) more attractive. (On the Directive in practice, and possible reforms, see my discussion here).

Secondly, the Commission might make a proposal for an EU law on admission of entrepreneurs. Next, it will consider a proposal on admission of service providers from non-EU countries. It will also review the effectiveness of other existing EU legislation on labour migration, in particular in order to prevent exploitation of workers. Finally, the paper includes some general words about cooperation with third countries.

Comments

Today’s paper seems entirely focussed on the feasibility of the Dublin system, with all other aspects of asylum law subsumed to supporting that objective. Never in the course of human history has such a small tail wagged such a big dog. The implication (only hinted at once) is that Dublin must be saved so that Schengen can be saved. At no point does the Commission ask itself whether Dublin can be saved – or whether Schengen should be.

The problem is that it is hard to see how Dublin could be made to work, especially now that large increases in migration flows have made its malfunctioning a huge political issue. Allowing asylum-seekers to leave Greece and Italy in large numbers for other Member States is politically unacceptable for those other Member States, and has led to internal border checks being reimposed and the construction of new walls across the continent. Insisting that Greece – its economy impoverished by a combination of poor domestic and Eurozone governance – should bear the burden alone is untenable, and both the EU court and European Human Rights court ruled that Greek asylum standards were insufficient even before the twin economic and migration crises took full effect. The reasonable attempt to reduce the Greek burden a little by means of the relocation Decisions has been ineffective.

It’s hard to see how a slightly different version of the relocation system can be made to work either. And why would the Member States collaborate in a fully-fledged quota system, which they are likely to find even less attractive than the relocation rules?

All this explains the recent EU turn towards a ‘Plan B’: simply returning most or all those who reach Greece straight back to Turkey. Time will tell soon enough how workable this alternative is: it may also prove unfeasible if people switch to different routes, are not deterred from arriving, or successfully challenge the legality of the deal. Certainly, the Commission’s assumption is that enough people will still arrive to cause a political problem. So the most important elements of today’s paper are the twofold intention to punish secondary movements and to deter people from coming at all. (I won’t comment on the legal migration part, which simply reiterates existing plans).

It’s clearer how the Commission would like to punish secondary movements. The plans here resemble nothing more closely than a liberal parent who has finally lost his patience with his misbehaving children, resulting in a disproportionate authoritarian overreaction. Some of the plans are legally questionable: for instance, the CIMADE and GISTI judgment (ruling that asylum-seekers should retain benefits even if they are the responsibility of another Member State under the Dublin system) was based partly on the EU Charter. A legislative amendment overturning it might therefore be challenged as a breach of the Charter. So might new rules on detention (cf the recent CJEU judgment on challenges to existing detention rules).

Sensible parents use carrots as well as sticks. Why not offer asylum-seekers a modest cash bonus in kind if they accept allocation to a Member State under the relocation rules? Or let them have earlier access to work if they stick to the rules? Or simplified and quicker long-term residence status? 

Returning to the analogy of the angry parent, the Commission has clearly found, like King Lear: 

How sharper than a serpent’s tooth it is

To have a thankless child

Yet its response is, in its own way, as irrational as his.

As for new rules to deter people from coming to the EU in the first place, the Commission threatens much, but is silent on most of the details. One is reminded of Lear again:

I will do such things,—
What they are, yet I know not: but they shall be
The terrors of the earth

But Lear did not have to contemplate convincing the European Parliament, EU Member States or the courts of his unformed plans. So there are political, legal and practical limits to what the Commission can successfully propose. Member States will be reluctant, as ever, to curtail much of their significant remaining discretion over asylum procedures. The European Parliament will probably not rush to roll back the improved standards which it spent five years fighting for. Anyway, the underlying logic of the Commission’s argument is doubtful. If high asylum standards in the EU are such a pull factor, why are there so many more refugees in Turkey, Jordan, Lebanon, and East Africa? Won’t a sharper difference between refugee and subsidiary protection status encourage more appeals and secondary movements too?

The only semblance of balance in the Commission’s paper is its focus on safe passage. But it’s spent two years resisting safe passage in the context of the reform of the EU visa code, using the weak argument that humanitarian visas are not meant for short-term entry. But they fall within the scope of the rules on visas with ‘limited territorial validity’, where the normal rules on visas (such as the time limit) are expressly disapplied. The mention of humanitarian permits in this paper now looks like an excuse to defer dealing with the issue. Similarly, the EU could and should have developed a proper resettlement policy years ago. There’s still no mention of any numbers in this context: compare to the recent suggestions from the UNHCR. And expecting a quid pro quo for the humanitarian gesture of resettlement doesn’t get any less cynical with repetition.

Overall, this is a very disappointing paper from the Commission. There are certainly abuses of the asylum system, but EU legislation already has many possibilities to address them, as regards fast-tracking decisions and appeals, reduced benefits and detention. There’s little evidence here of a balanced, rational and coherent response to the crisis. In fact, this looks rather more like panic.

Of course EU asylum law does not develop in a political vacuum. Member States had a key role agreeing these laws, and the main role implementing them and driving the reaction to the crisis. No criticism of the ‘EU response to the crisis’ should ignore what is ultimately driving that response: the neo-nationalist political parties which are in government in several Member States and form the main opposition in several more. But is endless concessions to these parties really the right strategy? They will always be able to outflank the political mainstream when it comes to anger, fear and ignorance. It’s always better to stand and fight for what you really believe in than to pretend to agree with your opponents’ fundamentally different views.

*Disclaimer: I have been an independent consultant on the impact assessment relating to the reform of the Dublin system and the Blue Card Directive, and the evaluation of the qualification Directive. This does not restrict me from giving my own views on the Commission’s plans. 

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: www.ekathimerini.com