The New EU Asylum Laws, part 1: the Qualification Regulation

 

Professor Steve Peers, Royal Holloway University of London*

Photo credit: Ggia, via Wikimedia Commons

*sentences with an asterisk have been corrected or updated since the original publication of this post. Most recently updated 18 June 2024.  

Just before Christmas, the European Parliament and the Council (the EU body consisting of Member States’ ministers) reached a deal on five key pieces of EU asylum legislation, concerning asylum procedures, the ‘Dublin’ system on responsibility for asylum applications, the ‘Eurodac’ database supporting the Dublin system, screening of migrants/asylum seekers, and derogations in the event of crises. I’ve looked at this new legislation in a series on this blog, based on a forthcoming article.* The other blog posts are: Part 2 (on reception conditions); Part 3 (on the resettlement Regulation); Part 4, (Eurodac); part 5 (on the screening Regulation); part 6 (on Dublin), part 7 (on the asylum procedures Regulation); and part 8 (on the crisis Regulation, plus general comments).* These laws are intended to be part of a ‘package’ of new or revised EU asylum laws. (Update: the European Parliament voted for the changes to EU asylum laws in April 2024, the Council formally adopted them on 14 May 2024, and they were published in the EU Official Journal on 22 May 2024)* 

The 2024 legislation joins the Regulation revising the powers of the EU asylum agency, which was separated from the package and adopted already in 2021.* 

The qualification Regulation: background

There have been two previous ‘phases’ in development of the Common European Asylum System: a first phase of laws mainly adopted between 2003 and 2005, and a second phase of laws mainly adopted between 2011 and 2013. The 2024 package is in effect a third phase,* although for some reason the EU avoids calling it that.

In each phase, the law on qualification is central: defining what is necessary to obtain refugee status or subsidiary protection status (ie protection other than as a refugee), and setting out what rights people have if they obtain either status. The first phase Qualification Directive was adopted in 2004; the ‘second phase’ Qualification Directive replaced it in 2011. (I analysed the negotiation of the latter Directive here; there’s also a lengthy analysis of it by Madeline Garlick and Violeta Moreno Lax in EU Immigration and Asylum Law: Text and Commentary, and see also my asylum chapter in the latest edition of EU Justice and Home Affairs Law). The third phase, adopted in 2024, now includes a qualification Regulation.*  

There is CJEU case law on both the first phase Directive and the second phase Directive. It might be argued that the case law is still relevant to the new Regulation, unless the relevant text has been amended; in some cases the Regulation (or the preamble to it) reflects some of that case law.

The UK and Ireland opted in to the first phase Directive, but not the second phase Directive or the proposal for the 2024 Regulation. Of course, the UK is no longer bound by EU law, but Ireland is still bound by the first phase Directive. Denmark opted out of both.

Of course, none of the measures in the package can be fully understood without the context of all the others – which I discuss over the course of this series of blog posts.* For instance, it is possible that the effect of the other measures in the package will be to reduce the numbers of people who would otherwise apply for refugee or subsidiary protection status in the EU, or whose applications will be considered on the merits (the asylum procedures law provides that some applications can or must be considered inadmissible). The qualification law is only relevant to those who get to that stage. And for those who do obtain refugee or subsidiary protection status, they can eventually obtain EU long-term resident status, which inter alia provides for a limited prospect of movement between Member States – and that law is in turn being renegotiated too, separately from the asylum package (my comments on that renegotiation here).

The legislative process leading to the 2024 qualification Regulation started with the Commission proposal in 2016,* as a response to the perceived refugee crisis, followed by EU governments agreeing their position on the proposal, which had to be negotiated with the European Parliament (its negotiating position was set out here). I compared the three institutions’ positions in a blog post here. But this blog post will compare the 2024 Regulation only to the 2011 Directive, although I have updated some of the discussion in my previous blog post where relevant.

Basic issues

The first key issue is the type of law used, which is linked with the degree of harmonisation which the EU seeks in this field. The first and second phase qualification laws were Directives, which mean that Member States were bound to achieve the outcome required but had a choice of form and method. The 2024 law is a Regulation,* which is binding in and of itself, without national transposition.

As for the level of harmonisation, the Directives set a form of minimum standards: Member States could have higher standards, as long as those standards were compatible with the Directives. So they set not only a floor, but also a ceiling: the CJEU judgments in B and D, M’Bodj (discussed here), Ahmedbekova and LW discussed the limits of the power to set higher standards. But this will soon be history: the 2024 Regulation removes the power to set higher standards even with a ceiling, providing instead for uniform standards in principle, although some national options will remain in the text.* (The same two basic changes were also made to the 2013 asylum procedures Directive).*

The new Regulation, reflecting that case law, notes that Member States are however free to retain or establish a separate status of humanitarian protection,* as long as there is no confusion with the (EU harmonised) notions of refugee or subsidiary protection status. People with such national status will largely fall outside the scope of any EU law, although the equal treatment provisions in the recent amendment of the EU single permit Directive (discussed here) will apply to them, and the resettlement Regulation applies aspects of the qualification Regulation to those admitted on a humanitarian basis under the EU resettlement law (see Part 3 of this series).*

In practice the shift toward harmonisation may lead to some lowering of standards overall, due to the absence of the possibility to have higher standards generally (even subject to a ceiling) and the removal of some options, to the extent that Member States are now obliged to (for instance) provide for an ‘internal flight alternative’ in their law,* and to require two criteria (not just one criterion) to be satisfied to apply the ‘particular social group’ ground of refugee protection. But the effect of such changes is qualified: for example, the requirement to apply the ‘internal flight alternative’ rule comes with additional safeguards attached to that rule, and Member States may have had less enthusiasm to apply higher standards for refugees, as compared to the options in EU law to have higher standards for (say) employment and environmental law.

The 2024 qualification Regulation provides that the previous Directive ceases to apply from 12 June 2026, while the new Regulation will apply from 1 July 2026.* There is no explanation of what happens between those two dates, and no transitional rule for applications pending, or status granted, before either of those dates.*  

The refugee parts of the Regulation (like the prior Directives) aim to implement the UN Refugee Convention (which the EU refers to as the ‘Geneva Convention’) in more detail, as regards both the definition of ‘refugee’ and the rights which refugees receive. The case law of the CJEU has often interpreted the Directive in light of the Convention, which seems likely to continue because the Regulation still makes many references to the Convention.

Turning to the details of the Regulation, there are five main elements to the law: common rules (applying to both refugee and subsidiary protection status); the definition of ‘refugee’; cessation, exclusion from and withdrawal of refugee status; the definition and cessation etc of subsidiary protection; and the content of status (ie the benefits people with status receive). This blog post mostly does not discuss the preamble, but keep in mind that the preamble adds some important detail to many of the points in the main text analysed here.

Common rules

Family members of refugees and people with subsidiary protection will be defined slightly more broadly. A ‘family member’ will now include relationships formed outside the country of refuge, not just those formed inside the country or origin. This means, for instance, that the spouse of a Syrian refugee who married him while in Turkey or Lebanon, and the children of that couple born in such countries, would now be defined as ‘family members’. It is still necessary for the family members to be present on the territory in connection with the asylum application, though (as confirmed by the recent CJEU judgment in Afrin – although note that in such cases, the separate EU law on family reunion applies for refugees). 'Family members' will now include dependent adult children.* A minor must be considered unmarried if the marriage would not have been allowed under the Member State’s national law, especially on grounds of age.

The Regulation ‘should’ apply to those covered by the planned new EU law on resettlement of refugees from non-EU countries (according to the preamble); the rules on assessment of asylum applications will expressly apply to them. (In fact, as discussed in Part 3 of this series, the resettlement Regulation will be clearer on this point).* As with the previous Directives – and unlike other EU asylum law measures – there is no provision on the territorial scope of the Regulation.

It will now be mandatory, not optional, for the main burden of proof to rest upon the applicant to show why the claim for refugee or subsidiary protection status is justified; and a new clause in the preamble will reflect the ECJ’s 2014 case law (discussed here) which limits the intrusiveness of Member States’ questioning of the credibility of LGBTI asylum-seekers.  The importance of the asylum seeker applying at the ‘earliest possible time’ will be de-emphasised.

As before, the Regulation will retain the possibility of becoming a refugee or needing subsidiary protection ‘sur place’ – ie because of events which took place after the asylum seeker left his or her country of origin, or due to activities of the applicant since leaving that country. But the exception to this rule will remain optional (‘may’): where the applicant has created the circumstances for use of this provision, Member States may refuse protection. This exception will be widened in two ways (extending it to include subsidiary protection claims, and applying it to initial applications, not just repeat applications), but also subject to a new safeguard (the circumstances created by the applicant must be for the for the ‘sole or main purpose of creating the necessary conditions for applying for international protection’). (For the position under the 2011 Directive, see the recent judgment in Case C-222/22).*

On the other hand, the option to refuse claims because the asylum seeker had an ‘internal flight alternative’ – ie he could have fled to a safe part of the country of origin, like a supposed ‘safe zone’ in Syria – will become mandatory. (The possibility of rejecting a claim because an asylum seeker would arguably have been safe in a different country is the subject of the asylum procedures Regulation). However, there are new safeguards: a strong presumption that the concept cannot apply where the source of persecution is the State; applying the main rules on qualification first; shifting the burden of proof to the authorities, and obliging them to consider contrary arguments submitted by the applicant; more on the personal circumstances of the applicant; a requirement to consider whether the applicant could meet their basic needs; and a specific protection for unaccompanied minors. There is also a new requirement to consider the country of origin information supplied by the EU Asylum Agency. Note that although the CJEU has not yet interpreted the rules on the ‘internal flight alternative’ as such, it has recently ruled that differences in interpretation of the rule between Member States are not a good enough reason to refuse to transfer an asylum seeker to another Member State under the Dublin rules. In that context, it is possible that the additional provisions in the Regulation will lead to a more harmonised interpretation of the rule between Member States.

As for the sources of persecution or protection, the Regulation will retain the current rules in the Directive, replacing a reference to considering whether EU acts define a country as providing effective protection from persecution with a reference to considering country of origin information, including from the EU asylum agency where available.

Definition of ‘refugee’

The Regulation retains the basic idea from the previous Directives – and the UN Refugee Convention – that a ‘refugee’ is someone persecuted because of their race, religion, political opinion, nationality or particular social group, elaborating upon each of these concepts. The definition of ‘persecution’ will not change, but there are some changes to the text on ‘particular social group’: adding a reference to how the group is perceived, dropping a reference to criminal law, and adding a reference to ‘gender expression’. Furthermore, there are some new elaborations of the concept in the preamble, including a reference to the possibility of persecution on grounds of disability. As noted above, all Member States will also now have to require that asylum-seekers show that they both perceive themselves as part of a distinct group and are perceived as different by the rest of society, due to the loss of the capacity to set higher standards. (In the meantime, the CJEU has ruled for the first time on the position of women as part of a particular social group, with a judgment in January on domestic violence – see earlier discussion here – and also a pending case on Afghan women, discussed here).*

More generally, a new clause will provide that asylum seekers cannot be expected to hide their identity or beliefs, confirming case law as regards sexuality and religion.

Exclusion, cessation and withdrawal of status

The 2011 Directive elaborates on the Refugee Convention on exclusion, but the Regulation elaborates further.* First, the preamble to the new Regulation enshrines the basic elements of CJEU case law on the special status of some Palestinians (case law starting with Bolbol and El Kott; note also the recent Advocate-General’s opinion relating specifically to Gaza).* Secondly, a new provision on exclusion on grounds of terrorism states that no proportionality test is required in such cases, confirming the judgment in B and D; the preamble also takes account of the judgment in Lounani on the exclusion of foreign fighters, discussed here). Finally, another new provision will require consideration of whether a minor would be considered criminally responsible for acts under the law of a Member State, when considering if a minor would be excluded on grounds of war crimes, terrorism et al.

On cessation – loss of refugee status because, inter alia, the situation has improved significantly in the country of origin – the Regulation will provide again that account must be taken of country of origin information supplied by the EU asylum agency, or other sources.

As for the withdrawal of refugee status, withdrawal will be mandatory in more cases, now including where ‘there are reasonable grounds for regarding him or her as a danger to the security of the Member State in which he or she is present’ and where ‘he or she, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the Member State in which he or she is present’. Previously withdrawal of refugee status was only optional in some cases. The CJEU has recently interpreted the latter of the two newly mandatory exceptions (see the trilogy of judgments here, here and here). Also, the Court has more broadly ruled that even if refugee status is withdrawn, the person concerned remains a refugee, still benefiting from non-refoulement and the rights which the Refugee Convention sets out for refugees who are unlawfully resident.

Subsidiary protection

The core definition of subsidiary protection (a threat of serious harm deriving from the death penalty, torture or similar treatment, or facing a specified threat from armed conflict) will not be affected by the Regulation – although the preamble will entrench some of the relevant CJEU case law on how much violence against civilians, and what types of conflict, trigger the ‘armed conflict’ ground of subsidiary protection (Elgafaji and Diakité). The provision on cessation of subsidiary protection will refer to country of origin information, including from the EU Asylum Agency.

There will be some changes to the rules on exclusion from subsidiary protection (it will be necessary to show that there was a conviction for a ‘serious crime’, if committed after admission to the territory; the person concerned must be a danger to national security, not security generally); and the prospect of exclusion from subsidiary protection due to commission of less serious crimes will remain optional. As with refugee status, the rules on exclusion will now specify that no proportionality test is required, along with special provision for minors.

Rights of refugees and persons with subsidiary protection

The Regulation will change the provisions on the rights of those with refugee status or subsidiary protection in several ways. First, if a Member State has not issued a residence permit within 15 days, it must at least issue some provisional documentation so that access to rights is more effective. Secondly, the list of vulnerable people now includes parents of adult dependent children. Thirdly, there will be a common template for information to be given to people with refugee status or subsidiary protection, which will emphasise the limits on their movement to other Member States.

Fourthly, due to the abolition of the right for Member States to set higher standards where compatible with the qualification law, it will no longer be possible for them to give refugee or subsidiary protection status automatically to family members who do not qualify separately for refugee or subsidiary protection status in their own right (see Ahmedbekova). On the other hand, there is still an obligation to extend the same rights in the law to family members covered by it, even if they will not have refugee or subsidiary protection status as such. This will include having a residence permit with the same date of expiry as the person with refugee or subsidiary protection status, which is an improvement on the current Directive. But the Regulation precludes a residence permit being issued to a spouse or unmarried partner ‘where there are strong indications that the marriage or partnership was contracted for the sole purpose of enabling the person concerned to enter or reside in the Member State’.

Fifthly, there will be more harmonisation of the rules on residence permits, as regards fees, an explicit requirement to use the EU uniform format, an obligation to issue a permit within 90 days, and a requirement not to leave people with gaps between permits when they are renewed. The prospect for non-renewal of permits will now be linked to withdrawal of status (compare with the T judgment on the current law, discussed here).

Sixthly, there will be parallel harmonisation of the rules related to travel documents, which are issued by Member States to beneficiaries of international protection in place of passports, given that it would probably be unsafe for them to contact officials from their country of origin. (In the case of refugees, this supplements the rules already set out in the Refugee Convention). They will be valid for more than one year and will be expressly subject to the EU’s passport security rules.

Seventh, the provisions on movement within the territory will be redrafted to add the proviso that equal treatment with other non-EU citizens applies where they are ‘generally in the same circumstances’. This may be an attempt to confirm the case law in Alo and Osso (discussed here), which permits a link between limiting movements and the grant of benefits in some cases.

Eighth, there will be a new rule emphasising that refugees and people with subsidiary protection do not have the right to move between Member States – unless they are allowed to stay on the basis of national or other EU law, and subject to the right to make short-term visits under the Schengen rules. As noted already, the EU rules in question include a limited right to move between Member States under the EU long-term residence Directive, which is also being renegotiated. Any unauthorised movement between Member States can be punished by ‘resetting the clock’ on acquisition of long-term residence status under that law. However, Member States will have to fully count the time spent as an asylum-seeker when determining if a refugee or person with subsidiary protection has spent five years’ legal residence in order to qualify as an EU long-term resident under that Directive.

Ninth, the rules on integration will be amended by an obligation to ensure equal treatment as regards work-related matters, including taking account of experience in an occupation obtained outside the country of refuge. The rules on education will provide for equal treatment for adults (subject to an optional exception for loans and grants) and an express right to finish secondary school after the age of majority. Social assistance benefits can be linked to compulsory integration courses, and it will still be possible for Member States to limit beneficiaries of subsidiary protection to ‘core benefits’, which will now be listed in the main text instead of the preamble (adding housing benefits, which takes account of analogous case law). It will also now be explicit that Member States may make integration measures compulsory, subject to provisions on fees and accessibility. Finally, there will be new provisions on the guardians of unaccompanied minors.

Assessment

To what extent will the Regulation achieve the objectives which it sets out in its preamble?

To ensure harmonisation and more convergence in asylum decisions and as regards the content of international protection in order to reduce incentives to move within the […] Union, encourage beneficiaries of international protection to remain in the Member State that granted them protection and ensure an equality of treatment of beneficiaries of international protection

The assumption that harmonisation of refugee decisions deters movements within the EU is often questioned, but in any event the Regulation should in principle increase harmonisation of decision-making somewhat. This stems not only from converting a Directive into a Regulation and removing the qualified option to have higher standards, but also from removing some of the options in the main part of the law, and providing more details of how the common rules must be interpreted – for instance, as regards sur place applications, the internal protection alternative, and the definition of ‘particular social group’.* Note that in some cases this takes the form of integrating the case law into the main text or preamble, thereby making it more visible – and this blog post only mentions some of the new details which will be added to the preamble.

On discouraging movements between Member States, the sanction of restarting the clock on EU long-term residence status for those who move without authorisation, plus allowing easier access to that status for those who stay put, aims to provide a simultaneous carrot and stick. Awkwardly the Regulation does not provide for the situation, recognised by the case law (albeit subject to a very high threshold), when it is legitimate for a refugee or person with subsidiary protection to move to another Member State because the conditions in the Member State which extended them protection have deteriorated to the point where they breach the EU Charter of Fundamental Rights.

As for equality of treatment of those with international protection, the changes in the rules on the rights after obtaining refugee or subsidiary protection status appear liable to reduce differences between Member States – if that is the issue of equal treatment being referred to. On the other hand, some differences between refugees and people with subsidiary protection (as regards social assistance, and being covered or not by the family reunion Directive, which will be particularly relevant where family members are not already present) will remain.  

More fundamentally, as noted already this Regulation will form part of a broader package aiming at the same objectives; in particular the new Regulation on asylum procedures will in parallel harmonise the law on the procedural side, and changes to the law on reception conditions will also aim to discourage movements between Member States. And going beyond this, the bigger impact of the asylum package may come not from this Regulation, but from the new constraints planned on asylum seekers’ applications being considered on the merits in the first place – potentially leaving the EU law on qualification for refugee and subsidiary protection status, whatever its form or legal content, as a form of Potemkin village less frequently accessible in practice. Some of the other blog posts in this series will examine the extent to which the new asylum package could lead to this result.

 

Barnard & Peers: chapter 26

JHA5: chapter I:5

**Disclaimer: I was an independent adviser for a consultancy advising the European Commission on the implementation of and possible amendment of the current Directive.

 

AG de la Tour’s Opinion in C-621/21: A Welcome Clarification on, or an Introduction of Unnecessary Obstacles to, Entitlement to International Protection for Women at Risk of Gender-based Violence?

 

 

Dr Maja Grundler, Lecturer in Law, Department of Law and Criminology, Royal Holloway, University of London

Photo credit: achrafmoroccan, via Wikimedia Commons

 

 

Introduction

On 20 April 2023, Advocate General (AG) de la Tour issued an Opinion in case C-621/21. The case concerns the scope of the refugee definition in Article 2(d) of the Qualification Directive, and of the definition of beneficiary of subsidiary protection in Article 2(g) of the Directive, in relation to women at risk of violence in the family context. The issue raised by case C-621/21 is not a novel one. The question whether, and under what circumstances, women experiencing domestic violence can claim asylum has been debated by academics, national courts and other stakeholders for many years. The United Nations High Commissioner for Refugees (UNHCR) issued guidelines on international protection concerning gender-related persecution (UNHCR Guidelines) as early as 2002, clarifying that ‘family/domestic violence’ is a common reason for gender-related persecution. The Court of Justice of the European Union (CJEU), however, received its first request a preliminary reference on the issue only in 2021, from the Administrative Court of Sofia, Bulgaria.

 

This blog post will argue that while AG de la Tour’s Opinion makes some welcome clarifications with regard to eligibility for international protection of women fearing violence in the family context, the reasoning employed in the Opinion is not in line with the standards contained in the UNHCR Guidelines and, in fact, introduces unnecessary obstacles to claiming international protection.

 

 

Facts of the case and questions referred

The case before the Administrative Court of Sofia concerns a Kurdish woman of Turkish nationality whose application for international protection is based on a fear of violence in the family context, more specifically, an honour crime and forced marriage. The applicant experienced violence and threats at the hands of her ex-husband, her family and the husband’s family. She left and divorced her husband and entered into a religious marriage with another man, with whom she has a child. She fears that she will be the victim of an honour crime and be forced to re-marry if returned to Türkiye.

 

The Bulgarian authorities dismissed the applicant’s initial claim, as well as her appeal, and refused to open a new procedure when she submitted a subsequent application.

 

The case came before the Administrative Court of Sofia, which submitted five questions, seeking clarification on the relationship between the Qualification Directive’s concept of gender-based violence and relevant international law definitions under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention); how to establish membership of a particular social group (PSG) in the context of protection claims based on gender-based violence generally, and domestic violence specifically; how to establish the necessary link between acts of and reasons for persecution in this context, considering the actors of persecution are non-state actors; and whether the harm experienced in this context can be classed as ‘serious’ for the purpose of qualification for subsidiary protection.

 

 

The concept of ‘gender-based violence’ in international and EU law

AG de la Tour’s opinion commences with an examination of the first question referred by the Administrative Court of Sofia, which concerns the concept of ‘gender-based violence’ and how it is defined in international and EU law.

 

Referring to Article 78(1) TFEU and its requirement that EU asylum policy must be in accordance with the 1951 Convention relating to the Status of Refugees (Refugee Convention), its 1967 Protocol and ‘other relevant treaties’, the AG examines which treaties are in fact relevant in the present context.

 

Highlighting the particular importance of the Refugee Convention, the AG draws on the above-mentioned UNHCR Guidelines concerning gender-related persecution (confusingly, at times, UNHCR is referred to as the ‘HRC’ – presumably ‘High Refugee Commissioner’ – an abbreviation commonly used to refer to the Human Rights Committee, i.e. the body tasked with monitoring the implementation of the ICCPR – and, other times, as ‘HCR’). The AG states that the UNHCR Guidelines serve as a relevant point of reference for understanding the meaning of ‘gender’ and its relevance to the refugee status enquiry. He also refers to the EU Victim Protection Directive, which defines gender-based violence in Recital 17.

 

In contrast, he dismisses the relevance of both the CEDAW and the Istanbul Convention for the purpose of implementing the Qualification Directive, since the EU has not ratified and acceded to, the two instruments, respectively. Considering that the UNHCR Guidelines explicitly refer to the CEDAW, among others, as an instrument which has assisted ‘the analysis and understanding of sex and gender in the refugee context’ (para 5, n2), the relevance of the two instruments is, perhaps, too easily discounted (the UNHCR Guidelines do not refer to the Istanbul Convention which only opened for signature in 2011, nine years after the Guidelines were published).

 

As will become apparent from the discussion below, the Opinion also ignores other important aspects of the UNHCR Guidelines.

 

 

Women at risk of violence in the family context and membership of a PSG

AG de la Tour then moves on to examine the next issue raised by the referring court: the question how to establish membership of PSG in the context of protection claims based on gender-based violence generally, and domestic violence, honour crimes and forced marriage, specifically.

 

Setting out the two tests for establishing a PSG – the ‘innate characteristics’ and the ‘social perception’ test – and recalling their cumulative nature under the Qualification Directive, the AG explains how both can be met by women at risk of domestic violence.

 

First, he states that ‘the applicant’s gender may be associated with an innate characteristic – namely her biological sex – “that cannot be changed”’ (para 71), so that the first test can be met with reference to being biologically female. While the UNHCR Guidelines endorse this approach (para 30), they also make it clear that is sufficient to meet one of the two tests to establish membership of a PSG (para 29). In the particular context of EU law, then, which requires that both the ‘innate characteristics’ and the ‘social perception’ test must be met cumulatively, relying on biological sex to meet the former test becomes problematic.

 

Relying on biological sex – a problematic and difficult to define notion in itself – for the purpose of the innate characteristics test creates a risk of excluding trans persons from membership of the relevant group, even though, based on their differential treatment by surrounding society, they may satisfy the social perception test (UNHCR Guidelines, para 30). While the applicant in the case referred by the Administrative Court of Sofia is not a trans person, AGs’ opinions and CJEU judgements have repercussions not just for the applicant in the particular case, but for many others down the line. Thus, when defining particular terms of EU law, AGs and the Court should be mindful of the possible consequences of their statements and seek to avoid restrictive interpretations of EU law which could have negative consequences for other applicants. As Avgeri notes, establishing membership of a PSG on grounds of (trans or non-conforming) gender is extremely complex. Thus, the issues raised by different gender identities should be carefully considered in any discussion on gender-related persecution (more carefully than the scope of this blog post permits). Unfortunately, AG de la Tour has taken a different approach in his Opinion.

 

The Opinion also takes a problematic approach to the social perception test. While it is positive that the AG explains that gender is a social construct which creates inequalities between men and women, and thus states that ‘women, solely on account of their condition as women, are an example of a social group defined by innate and immutable characteristics liable to be perceived differently by society’, the AG then goes on to qualify this by adding that women are perceived as different ‘according to their country of origin, by reason of the social, legal or religious norms of that country or the customs of the community to which they belong’ (para 72).

 

Claiming that the relevant PSG ‘is made up of women in a given society (and not by “women” in general)’ (ibid; emphasis added) leaves room for claiming that, in some societies, women are not perceived as different and this may, in turn, have negative repercussions for women from societies perceived as ‘progressive’. While the UNHCR Guidelines agree that social, legal or religious norms play into the differential treatment of women, they still designate ‘women’ as the relevant PSG (para 31). Seven years after the #MeToo movement began to demonstrate the scale of (sexual) violence against women worldwide, the AG’s approach to the social perception test seems out of touch with the lived experiences of women in all societies.

 

Continuing to focus on the cultural context of the country of origin for the purpose of the social perception test, the Opinion then turns to discussing the relevance of Recital 30 Qualification Directive for establishing membership pf a PSG. The Recital states that

 

For the purposes of defining a particular social group, issues arising from an applicant’s gender, including gender identity and sexual orientation, which may be related to certain legal traditions and customs, resulting in for example genital mutilation, forced sterilisation or forced abortion, should be given due consideration in so far as they are related to the applicant’s well-founded fear of persecution (emphasis added).

 

The AG interprets this to mean that the acts of persecution referred to in the Recital ‘may be applied for the purposes of defining [the relevant PSG]’ and that it is ‘the nature of the acts of persecution, which refer to particular victims, that allows the “distinct identity” of a social group to be characterised’ (para 76).

 

Returning to the facts of the case before the Administrative Court of Sofia, the AG then states that there is ‘nothing to prevent a competent national authority from considering that a female child or adolescent, or even a woman, is a member of a particular social group on the ground that she would be exposed, if she were to return to her country of origin, to a risk of forced marriage’ (para 77) and that national authorities would also be entitled to find that ‘a woman who would be forced to return to her country of origin belongs to a group having its distinct identity in that country on the ground that, by her return, she would be exposed in that country to acts of serious marital violence (beatings, rape and other sexual harm, etc.) that are traditional in certain communities’ (para 78).

 

This approach comes dangerously close to defining the PSG with reference to the persecution feared, while the UNHCR Guidelines remind us that ‘a particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society’ (para 29; emphasis added). Although the AG considers that the persecution feared is relevant in the context of the social perception, rather than the innate characteristics test, referring to the precise risk is entirely unnecessary if we can accept that the relevant PSG is ‘women’ and not ‘women in a given society’.

 

 

The link between acts of and reasons for persecution

The next question the Opinion examines concerns the link between the persecution feared and the Convention ground ‘membership of the PSG’, in the present case the PSG ‘women (in a given society)’. When compared with the standards contained in the UNHCR Guidelines, some problematic aspects are immediately apparent in this section of the Opinion.

 

The Opinion delves into a detailed discussion on the state of origin’s inability or unwillingness to protect (since the harm feared emanates from non-state actors). This discussion, however, is not necessary for determining the link between the persecution feared and the Convention ground. As the Qualification Directive states, and the AG reiterates at para 89, such a link can be established by finding a connection either ‘between the reasons [for persecution] and the acts of persecution … or the absence of protection against such acts’ (Article 9(3); emphasis added). Similarly, the UNHCR Guidelines state that

 

In cases where there is a risk of being persecuted at the hands of a non-State actor (e.g. husband, partner or other non-State actor) for reasons which are related to one of the Convention grounds, the causal link is established, whether or not the absence of State protection is Convention related (para 21).

 

The AG, however, finds that ‘the competent national authority is … required to assess whether a causal link can be established between, on the one hand, the reasons underlying the acts of domestic violence committed within the household or the family circle, namely membership of a particular social group, and, on the other hand, the absence of protection on the part of the authorities of the country of origin … against those acts’ (para 90). Since membership of the PSG ‘women’ explains why women experience domestic violence at the hands of non-state actors, the link should be established without considering the reasons for an absence of state protection. Requiring a link between the reasons for persecution and failure of state protection without explaining that the link can, alternatively, be satisfied by establishing a connection between the reasons for and the acts of persecution introduces an additional hurdle into the refugee claim.

 

 

Eligibility for subsidiary protection

Finally, the AG deals with the question of eligibility for subsidiary protection. This section contains some welcome clarifications. Most importantly, the fact that an honour crime, which ‘consists in putting a person to death’ constitutes an ‘execution’ for the purpose of Article 15(a) Qualification Directive (paras 106-107) and that other acts of domestic violence can amount to ‘serious harm’ for the purpose of Article 15(b) Qualification Directive.

 

 

Conclusion

AG de la Tour’s Opinion in C‑621/21 makes some welcome clarifications, but the devil is in the details. Importantly, the Opinion clarifies that women fearing violence in the family context can be granted refugee status since they can establish membership of a PSG and that those women who cannot claim refugee status are likely to be entitled to subsidiary protection. Yet, the AG’s Opinion is problematic, not because of its overall findings, but because of the reasoning employed in arriving at these findings. Both the proposed way of establishing membership of a PSG and the nexus to Refugee Convention grounds introduce potential difficulties for applicants fearing gender-related persecution.

 

Indeed, the AG’s views on establishing a PSG, and the link to the persecution feared, do not align with the standards contained in the UNHCR Guidelines, despite the AG referring to their importance and relevance earlier in the Opinion. Thus, AG de la Tour’s Opinion seems to seek to maintain the trend of the CJEU selectively engaging with international (soft) law instruments in interpreting the Qualification Directive.

 

In conclusion, while, at first glance, the Opinion seems like a welcome clarification on entitlement to international protection for women at risk of gender-based violence, much of the discussion in fact introduces unnecessary obstacles to claiming such an entitlement.

 

 

Foreign fighters' helpers excluded from refugee status: the ECJ clarifies the law

Professor Steve Peers

What if a person claiming to be a refugee is an alleged terrorist, or at least giving assistance to alleged terrorists? Can they still claim to be a refugee – and if not, how should we define ‘terrorism’ for the purposes of rejecting their claim to be one? Today’s judgment of the EU Court of Justice in the Lounani case usefully clarifies some aspects of this controversial and legally complex issue, but inevitably leaves some difficult questions open.

Legal framework

The starting point for this issue is the wording of the UN Refugee Convention, known by the EU as the ‘Geneva Convention’, which contains an ‘exclusion’ clause in Article 1.F:

F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

The UN rules (which all EU Member States have signed up to) have been transposed, but with variations, in the EU’s Qualification Directive, which applies to every Member State except Denmark. (Technically the UK and Ireland are bound only by the first version of this Directive, but the rules on exclusion haven’t changed).  Article 12(3) of that Directive reads as follows:

2. A third-country national or a stateless person is excluded from being a refugee where there are serious reasons for considering that:

(a) he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he or she has committed a serious non-political crime outside the country of refuge prior to his or her admission as a refugee, which means the time of issuing a residence permit based on the granting of refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes;

(c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations.

3. Paragraph 2 applies to persons who incite or otherwise participate in the commission of the crimes or acts mentioned therein.

It can be seen that the EU rules differ from the UN rules to the extent that: they add some wording on the timing and nature of ‘serious non-political crimes’; they clarify the reference to acts contrary to UN ‘purposes and principles’; and they apply the exclusion to those who ‘incite or otherwise participate’ in all three categories of acts leading to exclusion.

Despite this attempt at clarification, there will always be issues of interpreting these rules. The EU Court has ruled on them once before, in its judgment in B and D, when it stated that first of all that the second and third exclusion clauses can apply to terrorist offences.  However, exclusion must be assessed in each individual case, meaning that membership of a group listed as ‘terrorist’ in EU foreign policy sanctions against terrorists does not automatically trigger the exclusion clause, although it is a ‘factor’ to consider. Participating in a terrorist group, as defined by EU criminal law on terrorism, does not automatically trigger the exclusion clause either. Instead, there must be direct involvement by the person concerned in such offences, as further explained by the Court. Furthermore, there is no additional ‘proportionality’ or ‘present danger’ test for exclusion. Finally, the exclusion clause is mandatory: ie Member States cannot assert a right to apply higher standards and give someone refugee status if they fall within the exclusion criteria.

The judgment

What does today’s judgment add? The person concerned was convicted of participating in a terrorist group, but not of carrying out any terrorist acts as such. So is such a conviction sufficient to trigger the exclusion clause?

The EU court ruled that it was. First of all, the preamble to the EU Directive referred to UN Resolutions on ‘financing, planning and inciting’ terrorism; so the third exclusion clause goes beyond terrorist acts as such. Secondly, the EU legislature had not intended to match the exclusion clause in asylum law with the narrower definition of terrorism in (current) EU criminal law legislation.

Next, the EU court ruled that following a later UN Security Council Resolution, assisting with recruitment, organisation or transport of ‘foreign fighters’ could also fall within the scope of the exclusion clause. So could ‘participation’ in such activities, pursuant to Article 12(3) of the EU Directive. It was relevant that the group in question was listed as terrorist by the UN Security Council, and particularly relevant that the person concerned had been convicted of terrorist offences in Belgium.

Comments

The Court’s judgment asserts a broad scope of the exclusion clause, meaning that a degree of support for ‘foreign fighters’ will also result in exclusion from refugee status. In doing so, it answers the claims of those who believe that many refugees are ‘jihadists’. Simply put, anyone who has been directly involved in terrorist acts (B and D) or in facilitating the activities of ‘foreign fighters’ (today’s judgment) is not entitled to refugee status. Although the judgment does not mention it, this aligns the interpretation of the exclusion clause to some extent with recent developments in criminal law, namely the 2015 Protocol to the Council of Europe Convention on the prevention of terrorism, and the agreed revision of the EU’s anti-terrorism laws.

But the judgment cannot help leaving some difficult questions open. What if the asylum-seeker has not been convicted of terrorist offences anywhere, but there are allegations of such action? Since a conviction is particularly relevant to applying the exclusion clause, would a lack of such conviction conversely be particularly relevant in determining that the clause should not apply? Would that assessment be different if the person had been acquitted, or if an investigation or trial was pending? If the criminal law process was pending, should the asylum determination process be put on hold? What if the authorities had claimed to have information supplied from the security services, and were reluctant to bring criminal proceedings in order to preserve their sources and intelligence capability? 

What if there is a criminal conviction for terrorism from another country – particularly in the asylum-seeker’s country of origin, which might define criticism of the government as ‘terrorism’? Similarly what about ‘provocation’ to terrorism, which might include ‘glorification’ of terrorist acts, according to the revised EU criminal law? Here the question is to what extent freedom of expression, not directly connected to violent acts, might justify a refusal of refugee status. Recent acts remind us that as far as criminal law is concerned, terrorist acts – and the climate of hatred that surrounds them – are not confined to Islamist extremists, but stem also from those who fanatically hate minority groups as well.

Barnard & Peers: chapter 25, chapter 26

JHA4: chapter I:5, chapter II:5

Photo image: Worldbulletin

The final EU/Turkey refugee deal: a legal assessment

Steve Peers

The EU and Turkey have now reached an agreement on refugee issues, which has aroused considerable legal and political controversy. To examine the arguments about the deal, I present here the main text with my legal assessment of each point annotated. This builds upon my comments (together with Emanuela Roman) first of all in general on the relevant points last month, and then secondly on the leaked draft text of the final deal earlier this week (I have reused here some of the latter analysis where relevant). The agreement should be read alongside the EU summit conclusions, as well as the Commission communication on the deal. It incorporates the March 7 EU/Turkey statement which addressed the same issues in less detail.

The text of the deal is underlined below. The sections in bold have been added during negotiations, and the sections in strike-out have been removed. I have already discussed the legal status of the deal in the prior post earlier this week: it’s a statement that is not subject to approval or legal challenge as such; but its implementation in the form of specific laws or their application to individual asylum-seekers can be challenged.

1.       All new irregular migrants crossing from Turkey into Greek islands as from 20 March 2016 will be returned to Turkey. This will take place in full compliance with EU and international law, thus excluding any kind of collective expulsion. All migrants will be protected in accordance with the relevant international standards and in respect of the principle of non-refoulement. It will be a temporary and extraordinary measure which is necessary to end the human suffering and restore public order, Migrants arriving in the Greek islands will be duly registered and any application for asylum will be processed indvidually by the Greek authorities in accordance with the Asylum Procedures Directive 2013/32/EU, in cooperation with UNHCR. Migrants not applying for asylum or whose application has been found unfounded or inadmissible in accordance with the said directive will be returned to Turkey, Turkey and Greece, assisted by EU institutions and agencies, will take the necessary steps and agree any necessary bilateral arrangements, including the presence of Turkish officials on Greek islands and Greek officials in Turkey as from 20 March 2016, to ensure liaison and thereby facilitate the smooth functioning of these arrangements. The costs of the return operations of irregular migrants will be covered by the EU. Migrants having been returned to Turkey will be protected in accordance with the international standards concerning the treatment of refugees and respecting the principle of non-refoulement.

The newly added first sentence is a flagrant breach of EU and international law – but the rest of the paragraph then completely contradicts it. To be frank, anyone with a legal qualification who signed off on this first sentence should hang their head in shame. Returning ‘all’ persons who cross from Turkey to the Greek islands would contradict the ban on collective expulsion in the EU Charter and the ECHR, as well as EU asylum legislation. However, it does appear from the rest of the paragraph – including the newly added reference to non-refoulement (not sending people back to unsafe countries) – that this is not really the intention.

As for the rest of point 1, the first question is how ‘temporary’ this arrangement will be. Secondly, point 1 makes clear that the EU’s asylum procedure directive will apply to those who reach the Greek islands, as legally required. Note that the text does not refer to Greek waters: but the Directive explicitly applies to them too. It does not apply to international or Turkish waters. It is not clear what is planned as regards those intercepted before they reach the Greek islands.

As for ‘migrants not applying for asylum’ the crucial question is whether they will be given an effective opportunity to apply for asylum, as the Directive (and ECHR case law) requires. If an irregular migrant does not apply for asylum then in principle there is no legal obstacle to returning them to Turkey, subject to the conditions set out in the EU’s Returns Directive. Note that the Greek authorities will have to consider the applications, which is a significant administrative burden; this implicitly reiterates the closure of the route via the Western Balkans. The EU’s decisions on relocation of asylum-seekers from Greece and Italy (discussed here) will implicitly continue to apply, but they only commit to relocating a minority of those who arrive in Greece, and they are barely being applied in practice.  

If an application is ‘unfounded’ that means it has been rejected on the merits. If it is ‘inadmissible’ that means it has not been rejected on the merits, but on the grounds that Turkey is either a ‘first country of asylum’ or ‘safe third country’ (there are other grounds for inadmissibility, but they wouldn’t be relevant). The Commission paper briefly suggests that Turkey could be a ‘first country of asylum’ (for more analysis on that, see the prior blog post). Most of the debate is on whether Turkey is a ‘safe third country’.

Is it? The commitments on treatment in Turkey have been moved from this statement to the separate summit conclusions. Treatment in Turkey will need to match EU rules in the procedures Directive, which define a ‘safe third country’ as a country where: the people concerned do not have their life or liberty threatened on ground of ‘race, religion, nationality, membership of a particular social group or political opinion’ (this test is taken from the Geneva Convention on refugee status); there is ‘no risk of serious harm’ in the sense of the EU definition of subsidiary protection (death penalty, torture et al, civilian risk in wartime); the people concerned won’t be sent to another country which is unsafe (the non-refoulement rule, referring specifically to the Geneva Convention, plus the ban on removal to face torture et al as laid down by ECHR case law); and ‘the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention’.

As set out in the previous blog post, the last point is questionable because Turkey does not apply the Geneva Convention to non-Europeans, and the best interpretation of this requirement is that it must do so in order for the clause to apply. However, this interpretation is not universally shared: the Commission, the Council, Greece and some academics take the view that it is sufficient that Turkey applies equivalent standards in practice. (Note that the Commission only selectively quotes the Directive to make this argument). Even if this latter interpretation is correct, whether Turkey does apply equivalent standards in practice might itself be open to question.

Furthermore, again as discussed in the previous post, many NGOs argue that refugees are not always safe from mistreatment in Turkey itself, although no one argues that all of them are mistreated there.  Equally Turkey allegedly returns some people (but clearly not all of them) to unsafe countries, and the deal explicitly plans for a ‘safe zone’ in Syria.  Such a zone is conceivable in theory, but whether it would indeed be safe would have to be judged when and if it happens; and it may become less (or more) safe in light of events. To address these issues the procedures Directive says that the asylum-seeker must be able to argue that ‘the third country is not safe in his or her particular circumstances’. Everything will then turn on the assessment of an argument along these lines.

A critical here is whether the case can be fast-tracked. The procedures Directive contains lists of cases where the administrative procedure can be fast-tracked, and where the appeal against a negative decision to a court doesn’t automatically entitle an asylum-seeker to stay. Note that those lists don’t refer to fast-tracking ‘safe third country’ cases, although in practice it may be quicker to decide a case without examining the merits. It is possibly arguable that the lists aren’t exhaustive. If Greece wants to take this view, the interpretation of these clauses will be crucial. If the cases can’t be fast-tracked, it will obviously take longer to return people to Turkey in practice. Member States can set up special ‘border procedures’, but there is no reference to fast-tracking applications in this context. Furthermore, Member States can’t apply fast-track or border procedures to ‘vulnerable’ applicants, as broadly defined, and can’t apply border procedures to unaccompanied minors.

Odd as it might seem, the general state of human rights in Turkey (for example, as regards freedom of expression) is not directly legally relevant to returning refugees or other migrants there. The question is whether Turkey is unsafe, as defined in EU asylum law, for refugees and migrants. However, the general state of human rights in Turkey is relevant for a different reason: the Commission has separately proposed that Turkey be designated a ‘safe country of origin’, so that any refugee claims by Turkish citizens can be more easily rejected. I argued last September that this proposal was untenable in light of the human rights record of Turkey. In light of developments since, I’ll update my assessment: the suggestion is now utterly preposterous. But this proposal is not part of the deal.

2.    For every Syrian being returned to Turkey from Greek islands, another Syrian will be resettled from Turkey to the EU taking into account the UN Vulnerability Criteria. A mechanism will be established, with the assistance of the Commission, EU agencies and other Member States, as well as the UNHCR, to ensure that this principle will be implemented as from the same day the returns start. On resettlement based on 1-for-l principle: a) Priority will be given to migrants Syrians who have not previously entered or tried to enter the EU irregularly, On the EU side, resettlement under this mechanism will take place, in the first instance, by honouring the commitments taken by Member States in the conclusions of Representatives of the Governments of Member States meeting within the Council on 22/7/2015, of which 18.000 places for resettlement remain. Any further need for resettlement will be carried out through a similar voluntary arrangement up to a limit of an additional 54.000 persons. The Members of the European Council welcome the Commission's intention to propose an amendment to the within the limits and in accordance with the distribution set out in [relocation decision of 22/9/2015 to allow for any resettlement commitment undertaken in the framework of this arrangement to be offset from non-allocated places under the decision. - non-allocated places]. Should these arrangements not meet the objective of ending the irregular migration and the number of returns come close to the numbers provided for above, this mechanism will be reviewed. Should the number of returns exceed the numbers provided for above, this mechanism will be discontinued. the number of returns exceed the numbers provided for by these commitments, this agreement will be subject to review.

The idea of a ‘1-for-1’ swap of irregular migrants for resettled Syrians has been controversial, but does not raise legal issues as such. Resettlement of people who need protection from the countries they have fled to is common in practice, but is not a binding legal obligation under international or EU law. The legality of return of people to Turkey has to be judged separately (as discussed above) from the question of whatever trade-offs might be made in return for this. However, I certainly share the view of those who find a de facto ‘trade in human misery’ morally dubious. The ethos of resettlement is humanitarian; to demand a pay-off for one’s humanitarian actions contradicts their ethical foundations.

The final text makes clear that resettlement will focus on the most vulnerable people. Note that if all resettlement from now on takes place from Turkey, then no-one will be resettled by the EU from Lebanon and Jordan, which also host large numbers of Syrian refugees. On the ‘low priority’ cases, it is open to Member States to prioritise resettlement on whatever criteria they like. Obviously the intention here is to deter people from attempting unsafe journeys via smugglers; whether that would work depends on the numbers who might be resettled.

Overall, the EU has not increased the numbers of people that Member States are willing to accept: the first 18,000 are the remainder of the 23,000 people that the EU committed to resettle from non-EU countries last year, and the next 54,000 are the remainder of those who were going to be relocated from Hungary, before that state rejected the idea last September. However, unlike the mandatory quotas under the EU’s relocation decision, these numbers will be voluntary. The final deal makes clear that the maximum member of people who will be returned on this basis is 72,000: this part of the deal ends once the number of returned irregular migrants hits that number, or if the levels of irregular migration stop. In the latter case, the EU will move to a voluntary humanitarian admission scheme, discussed below. In the former case, it is not clear what will happen.

3)   Turkey will take any necessary measures to prevent new sea or land routes for illegal migration opening from up out of Turkey and into to the EU, and will cooperate with neighbouring states as well as the EU to this effect.

This refers to Bulgarian concerns that people might try to cross the Black Sea as a new entry route. Of course, if people do make to Bulgarian territory or waters, the EU asylum laws would apply, as they do for Greece.

4)   Once the irregular crossings between Turkey and the EU have come to an end are ending, or at least have been substantially and sustainably reduced, the Voluntary Humanitarian Admission Scheme will be activated. EU Member States will contribute on a voluntary basis to this scheme.

This scheme is set out in a Commission Recommendation from December, as discussed in detail here. Note that the text was amended to make clear that irregular crossings would not have to stop entirely; that was an obvious fantasy.

5) The fulfilment of the visa liberalisation roadmap will be accelerated vis-à-vis all participating Member States with a view to lifting the visa requirements for Turkish citizens at the latest by the end of June 2016, provided that all benchmarks have been met. To this end Turkey will take the necessary steps to fulfil the remaining requirements to allow the Commission to make, following the required assessment of compliance with the benchmarks, an appropriate proposal by the end of April on the basis of which the European Parliament and the Council can make a final decision.

This commitment is transposed from the March 7 statement. The waiver of short-term visas only applies to the Schengen States, and applies for stays of three months. Under the EU/Turkey readmission agreement, Turkey will have to take back anyone who overstays. It will still be necessary for Turkey to meet the relevant criteria, and for the EU Council (by qualified majority vote) and the European Parliament to approve this change in EU law.

6)   The EU, in close cooperation with and Turkey, will further speed up the disbursement of the initially allocated 3 billion euros under the Facility for Refugees in Turkey and ensure funding of additional further projects for persons under temporary protection identified with swift input from Turkey before the end of March. A first list of concrete projects for refugees, notably in the field of health, education, infrastructure, food and other living costs, that can be swiftly financed from the Facility, will be jointly identified within a week. Once these resources are about to be used to the full, and provided the above commitments are met, Furthermore, the EU will mobilise decide on additional funding for the Facility of an additional 3 billion euro up to the end of 2018. [X] billion for the period [Y] for the Turkey Refugee Facility.

The amount and timing of additional money from the EU and its Member States was agreed during negotiations. Details of the timing of disbursements and the nature of the spending projects have also been added. Note that this money is not, as is widely assumed, simply handed over to Turkey: legally speaking it can only be spent on projects that assist the Syrian refugee population. The Commission paper sets out further details of how the money will be spent, starting with a contract to provide food aid to over 700,000 Syrians.

7) The EU and Turkey welcomed the ongoing  work on the upgrading of the Customs Union.

This refers to an intention to extend the existing customs union to cover services and investment issues.

8) The EU and Turkey reconfirmed their commitment to re-energise the accession process as set out in their joint statement of 29 November 2015. They welcomed the opening of Chapter 17 on 14 December 2015 and decided, as a next step, to open Chapter 33 during the Netherlands presidency. They welcomed that the Commission will put forward a proposal to this effect in April. Preparatory work for the opening of other Chapters will continue at an accelerated pace without prejudice to Member States' positions in accordance with the existing rules.

Ultimately the EU and Turkey agreed to open only one new chapter out of 35 which need to be agreed in order for Turkey to join the EU. Only one chapter has been closed so far in a decade of negotiation. There is no commitment to open or close any further chapters. Even if an accession deal is ever negotiated, there are many legal and political obstacles in the way of it being approved, as all Member States’ parliaments would have to agree.

9) The EU and its Member States will work with Turkey in any joint endeavour to improve humanitarian conditions inside Syria, in particular in certain areas near the Turkish border which would allow for the local population and refugees to live in areas which will be more safe.

This refers to an intention (as noted above) to create a ‘safe zone’ within Syria. Whether this is viable or not remains to be seen. If there is any dispute about its safety, then returning Syrians to Turkey would be problematic if Turkey intends to send them further on to the alleged safe zone.

Conclusions

Overall the final deal tries to address the two main legal concerns about the March 7 ‘deal’. It makes clear that the EU asylum laws will apply to those who reach Greece (subject to the caveat about what happens to those intercepted in Greek waters), and that Turkey will have to meet the relevant standards when taking people back. The intention to ‘make the deal legal’ is clearly undermined by the extraordinary statement that ‘all’ irregular migrants will be returned. The key legal question will be how these commitments are implemented in practice.

The main legal route to challenging what happens should be by asylum-seekers through the Greek courts. Those courts could refer questions to the CJEU about EU asylum law (the CJEU could fast-track its replies). Alternatively if the asylum-seekers have gone through the entire Greek court system, or cannot effectively access the Greek system they could complain to the European Court of Human Rights (which is separate from the EU), and claim that there is a breach of the European Convention of Human Rights. In practice, however, it may be that access to lawyers and courts is more theoretical than real.

It is unfortunate, to say the least, that the EU did not try to ensure beyond doubt that the deal was legal, by putting in place some sort of effective monitoring of Turkish commitments as regards the treatment of refugees and migrants, in particular asking Turkey to fully apply the Geneva Convention to all refugees as a condition of the deal. After all, the EU will now be meeting a significant proportion of the costs of housing refugees in that country. It is even more disturbing that some Member States want to arrange for expedited returns to Libya. Surely before too long, the CJEU will asked to interpret the definition of ‘safe third country’ in EU asylum law. That finding will be crucial in determining whether it really is legal to return people to Serbia, Turkey, Libya and possibly other countries besides.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: www.parapolitika.gr