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

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

The Backdrop of the Migration Crisis

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

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

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

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

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

The Factual Background

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

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

The Substance of the Case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Additional Remarks by the Advocate General

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

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

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

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

Comment

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

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

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

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

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: The Malta Independent

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

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

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

The State of Play of the Negotiations

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

The European Parliament as a Forward-Looking Negotiator

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

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

…Campaigning for Horizontal, Vertical and Reciprocal Solidarity

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

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

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

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

A too Ambitious Reform for a still Weak Legislator?

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

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

Barnard & Peers: chapter 26

JHA4: chapter II:5

Photo credit: euractiv.com

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

Professor Steve Peers, University of Essex*

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

Cynical politicians, aided by an uncritical media, aim to manufacture a moral panic from a modest number of people crossing the Channel. Be that as it may, these crossings raise a number of legal issues. There’s already a good discussion of many of them in the Free Movement blog, but I think it might also be useful to address some legal issues here, in a question and answer format.

Where are the international law rules on asylum?

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

The UN Refugee Convention

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

ECHR

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

EU asylum law

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

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

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

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

d) asylum procedure;

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

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

While some in the 2016 referendum campaign falsely claimed or implied that the UK has no control over its borders as an EU Member State, in fact the UK has an opt out from the EU’s Schengen system of (in principle) open internal borders, as well as an opt out on EU law on asylum, immigration and criminal law. In practice, the UK only opted in to some EU asylum laws: all of the first phase laws, but only some of the second phase laws (Dublin, Eurodac and the asylum agency).

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

Can ‘illegal’ migrants be refugees?

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

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

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

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

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

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

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

However, there are some indirect suggestions in the Convention that the number of countries which a refugee has crossed through might be relevant. Article 31 of the Convention, which deals with ‘illegal’ entry (as discussed above), includes the condition that a refugee had to be 'coming directly' from the country which they had to flee, in order to avoid penalties for illegal entry. While the 'non-refoulement' rule in Article 33 of the Convention prevents States removing refugees to an unsafe State, it does not prevent refugees from being removed to a safe State. Furthermore, as noted already, some of benefits which the Convention gives to refugees (such as welfare and access to employment) are reserved for those who are lawfully resident or present in the territory; and the Convention does not require States to give refugees a lawful status under national immigration law.

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

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

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

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

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

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

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

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

What’s the impact of Brexit?

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

If the proposed withdrawal agreement (discussed here) is ratified, it will keep in place the Dublin rules and other EU asylum legislation which binds the UK until the end of the transition period (discussed here), which is the end of 2020, or one or two years later if the two sides decide. (Note to those people freaking out that the withdrawal agreement provides for a ‘Joint Committee’: this sort of body is normal in international treaties, and the Joint Committee can only take decisions if the UK government and EU side have jointly agreed). The UK will retain its opt out over new EU asylum laws (and its capacity to opt in to those laws, if they amend existing EU laws which apply to the UK).

After that point a new treaty between the EU and UK, perhaps keeping in force the Dublin rules or some version of them, could be agreed. However, there is no reference to this possibility in the declaration on the future relationship between the UK and EU (which I annotated here) – although that declaration is not binding, so can’t prevent such a treaty being negotiated if the two sides wish. Although the EU has signed Dublin ‘association agreements’ with some non-EU countries – Norway, Iceland, Switzerland and Liechtenstein – the rationale for this is that those countries are also associated with the EU’s Schengen system.

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

The notion that those intercepted in the Channel or detected after crossing the Channel could be forcibly returned to France without that country’s consent is a non-starter (as is patrolling French territorial waters without consent). The referendum result is not a mandate to ‘take back control’ of a different country – least of all a country which English forces were booted out of in 1453.

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

Barnard & Peers: chapter 27, chapter 26

JHA4: chapter I:5

Photo credit: whitecliffsofdover.co.uk

The Case of the Administrative Arrangement on Asylum-Seekers between Greece and Germany: A tale of “paraDublin activity”?

Stathis Poularakis, Legal advisor - Advocacy Officer Médecins du Monde – Greece*

* Reblogged from the EDAL blog. An earlier version of this article was published in Greek on immigration.gr blog. The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of Médecins du Monde – Greece. Special thanks go to Evangelia Tzironi, PhD Candidate at the Law School of the National and Kapodistrian University of Athens for proofreading the article.

In mid-August 2018, Germany, Greece and Spain agreed on the sketchy details of the initial migration compromise deal that was reached on the sidelines of the EU Summit in Brussels in late June 2018. In this context, the Ministers on Migration of Germany and Greece reaffirmed their commitment by exchange of letters, to work towards common European solutions and to avoid any unilateral measure with respect to migration and asylum.  

In particular, both countries underlined their support for concluding the revision of the Common European Asylum System by end of 2018 “with the aim of achieving the goal of fair sharing of responsibility and solidarity”. In the event of a crisis – defined as a situation where asylum applications have surpassed a certain percentage e.g. 140% of a State’s fair share of asylum applications based on objective criteria (total population and GDP) – Germany committed to support Greece in the Council (of the European Union), especially on the adoption of additional support measures at European Union level. Germany agrees also that further supportive and development measures need to be adopted on the five Greek islands of Eastern Aegean, where the hotspot approach is implemented, in order to assist local communities. Finally, Germany affirms its commitment to increase the human resource capacity in Greece, through the EU Asylum Support Office (EASO), with the aim to strengthen the asylum system.

The final operational details of the aforementioned political agreement were annexed to the letters, under the Title “Administrative Arrangement”. This blog post aims to outline the key points of this “Arrangement”, to examine its legal nature arguing that argue that this document is a bilateral treaty whose scope extends beyond the Dublin Regulation, and to critically assess its impact on the EU asylum policy.

The content of the Administrative Arrangement

The Administrative Agreement is comprised of 15 articles and divided into three sections. The first part includes arrangements for the readmission to Greece of persons identified in the context of temporary checks at the German-Austrian border, having previously applied for asylum in Greece. The second part includes provisions for concluding pending Dublin cases of family reunification from Greece to Germany, and finally, the third section includes provisions on the review of the implementation of the "agreement", the mutual dispute settlement and beginning and ending of the aforementioned cooperation between the two countries.

In particular, under the "Administrative Arrangement", the following are agreed:

Germany will return to Greece, any adult third-country national who has been identified during a check at the German-Austrian border and wishes to apply for international protection if he/she has already applied for asylum in Greece i.e. when an entry in Eurodac (the EU system of exchanging fingerprints of asylum-seekers) indicates that the person has already requested protection in Greece, and such entry is dated from July 1st, 2017 onwards. Unaccompanied children (under the age of 18) at the time of the identification are excluded from readmission to Greece.

The German Authorities will provide notification of the refusal of entry to the Greek responsible authority using the form annexed to the Agreement via fax or email. The return should be initiated no more than 48 hours after the person has been apprehended, unless the Greek side objects to the return within six hours from the automatic confirmation of the receipt of the notification of the refusal of entry, demonstrating why the conditions of the administrative agreement have not been met. Within 7 days of the readmission, if the Greek authorities demonstrate that the above conditions had not been met (refusal of entry in error), Germany will readmit the person concerned without delay.

Germany commits to swiftly concluding family reunifications from Greece in the framework of the Dublin III Regulation by the end of 2018, with respect to “take charge” requests already accepted by the German Dublin Unit before 1 August 2018. It should be noted that due to the high number of Dublin transfers from Greece to Germany over the last year, asylum seekers entitled to be transferred to Germany under the relevant provisions of the Dublin III Regulation, were “blocked” in Greece for periods exceeding the six-month deadline provided by art. 29 of the Regulation. Germany also undertakes to examine all pending “take charge” requests that have been submitted before 1 August 2018 that have not been examined yet within two months of the beginning of the cooperation between the two parties based on this Administrative Agreement. The number of people to be transferred from Greece to Germany is capped at 600 people per month and family reunifications should be completed by December 2018.

At the same time, the German authorities will examine and reply "without undue delay" to all requests for re-examination submitted before 1 August 2018. To this end, the Greek authorities will provide a relevant sortable list with case numbers and submission dates. Passports and ID cards, marriage and birth certificates, family booklets, as well as the transcript of the interview with the person concerned, will be considered as evidence, when submitted in relation to a currently pending request for re-examination. These documents will be submitted in their original language. A translation in English will be also submitted, if available. It is explicitly envisaged that the submission of documentation in its original language (without translation) may not be used as a justification for rejecting the request for re-examination.

The cooperation between the two countries based on the Administrative Arrangement starts from the day of its acceptance by the Greek Minister on Migration Policy (dated 18.8.2018). The two parties will review the implementation of the agreement on a three-month basis. Each Party may withdraw from the Agreement by notifying the other Party in writing at least three weeks in advance. Lastly, it is explicitly envisaged that the agreement will discontinue upon entry into force of the revised Common European Asylum System.

"Administrative Arrangement" or international treaty?

The first issue raised by this so-called "Administrative Arrangement" concerns its actual legal nature.

Based on the public statements made so far and the title given to the document, it could be argued that the latter could be understood to be an informal non-treaty instrument - an arrangement on operational issues and actions in line with EU law. According to this argument this text seems to be in conformity with Article 36 of the Dublin III Regulation, which stipulates that Member States may, on a bilateral basis, establish administrative arrangements between themselves concerning the practical details of the implementation of this Regulation, in order to facilitate its application and increase its effectiveness. Such arrangements may relate to exchanges of liaison officers and the simplification of the procedures and shortening of the time limits relating to transmission and the examination of requests to take charge or take back applicants.

However, taking as a point of departure that negotiating States have the autonomy to choose between complex or simplified forms of express consent to be bound by a treaty (in the present case by exchange of instruments under Article 13 of the Vienna Convention on the Law of Treaties (VCLT), and given its content, it could also be argued that the “Agreement” could be perceived as an international treaty concluded in simplified form. This agreement in fact sets forth the “technical” modalities of the earlier political agreement between Chancellor Merkel and Prime Minister Tsipras in Brussels last June, in the sidelines of the EU Summit. International treaties in simplified form are concluded without the need for ratification by the State, nor the consent of the parliament. They are usually signed by Ministers or any other body authorized under national law and are related to technical or administrative issues of cooperation, military pacts concluded on a battlefield or arrangements for the application of a binding (“typical”) international treaty.

 

In order to draw a safe conclusion on the nature of the “administrative arrangement”, all the circumstances around the exchange of letters should be meticulously examined. “Treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation (Article 2(1)(a) of the VCLT). Whatever its designation (convention, accord, protocol, exchange of letters, agreed memorandum, memorandum of understanding), the intention of negotiating parties to create binding legal obligations marks the difference between treaties and informal instruments. To wit, even an exchange of letters could be considered as an international treaty.

A closer look on the actual content of the "Arrangement" suggests that this is not just an informal international non-binding agreement or arrangement on technical details of cooperation between the two Parties for the implementation of the Dublin Regulation, but rather a legal instrument setting forth “new” binding rules whose scope moves beyond the obligations established under the Dublin III Regulation.

In fact, the first part of the “Arrangement” contains clauses that are usually included in readmission agreements. No such an agreement has been ever signed between Germany and Greece. In particular, the clauses of the Arrangement lay down, among others, the specific conditions for readmission, the competent authorities of each State, the procedure to be followed, the responsible State in terms of costs etc. A standard template form is also included so as to facilitate the return. In reality, the “Arrangement” does not establish simplified and streamlined procedure for “Dublin transfers” (the wording “transfer” in not used in the text) but rather a fast-track readmission procedure for persons refused entry at the German-Austrian borders, likewise in any other case of an irregular migrant refused an entry in Germany. 

Another crucial element regarding the legal nature of this “Arrangement” lies with the specific clauses on family reunification that undoubtedly enumerate commitments to which the Parties have consented and their intention to create legal rights and obligations that go beyond those already provided for in the "Dublin III” Regulation. Namely, assuming the obligation to accept a transfer of an asylum seeker from Greece to Germany upon expiry of the 6 months’ time-limit under Article 29 of the Regulation – where the respondent MS is relieved of its obligations to take charge or to take back the person concerned – is a “new” obligation for Germany enshrined in the "Administrative Arrangement".

The same also applies for the obligation to re-examine all rejected requests for “take charge”. To avoid any confusion, one should make a clear distinction between the potential responsibility of Germany for the infringement of the time-limits and conditions laid down in the Dublin III Regulation, e.g. for breaching EU law, and the legal obligation of Germany to actually accept transfers for which its responsibility has already ceased under “Dublin”. These obligations are now explicitly assumed by the aforementioned "Administrative Arrangement".

It is worth mentioning that last year the competent Ministers of Greece and Germany had reached to a similar informal arrangement by which Dublin transfers to Germany were capped at 70 persons per month for a certain period of time. This informal agreement, however, was rather a "gentleman's agreement" between the two states without creating clear binding obligations for both parties. In any case, the conformity of this agreement to the Dublin Regulation is open to discussion, since the Dublin Regulation does not foresee such caps on relevant transfers for administrative convenience reasons.

Finally, one could hardly argue that during Merkel and Tsipras΄ meeting in Brussels, where a common political agreement was reached on migration, the two leaders concluded a formal treaty under international law with the subsequent "administrative arrangement” serving as a treaty in a simplified form, laying down modalities for the application of the treaty concluded by the two heads of state.

For all these reasons, the "administrative arrangement" should not be considered as a "gentlemen's agreement", nor as an administrative arrangement under Article 36 Dublin III Regulation but rather as a binding bilateral treaty whose provisions establish obligations that go beyond the scope of obligations established under the Dublin III Regulation. The agreement thus is governed by international law; an international treaty between Greece and Germany. This contravenes EU law which does not allow legislation at national level or bi/multilateral inter-se agreements in policy areas of shared competence, to the extent that the EU has exercised its competence, as it did through the adoption of the Dublin III Regulation (see TFEU Art 2(2); TEU Art. 4(3), third indent, and Protocol 25 to the TFEU). 

Dublin revisited or further violation of EU law?  A glimpse into the future of EU asylum policy

Another key point of concern is the impact of this bilateral agreement on EU’s asylum policy.

Could this “Administrative Arrangement” be seen as a new, enhanced and adapted to current developments, version of the Dublin rules, that is to say a bilateral agreement between two Member States that aims at strengthening the Dublin rules and principles or just another agreement beyond the scope of Dublin Regulation governed by international law?

One could argue that such bilateral agreements are rather symbolic in nature. They indicate that compromises at European Union level are feasible. As talks on the revision of the Dublin III Regulation stall, the establishment of interim measures among those Member States willing to move ahead collectively at European Union level (“enhanced cooperation”) seems indeed to be the only possible way to actually make progress in this area. However, that enhanced cooperation should to be done under the framework of EU law, i.e. following the procedures of EU law and not bilaterally as an inter-se agreement.

But is this "administrative arrangement" actually such a measure of European Union cooperation? Although the responsible Ministers expressly commit to continue working towards common European Union solutions and avoiding unilateral measures in relation to asylum and migration, this agreement is in fact just another – deeper – derogation from/violation of the European Union acquis. In fact, through such agreements, Germany cooperates with Member States serving as a key point of entry in EU by creating a “Quasi-Dublin” system / a Dublin-like system creating obligations that go beyond the scope of the Dublin III Regulation (i.e. extension beyond the 12 month period for the responsibility for irregular entry) and limitations that are not foreseen in the Regulation (such as caps on the numbers of transfers under the family reunion clauses). A system which, on the one hand, follows the general philosophy of the Dublin Regulation (application of the first country of entry criterion), but, on the other hand, is "free" from all “obstacles” that could jeopardize swift returns – namely clauses and safeguards provided for asylum seekers by the Dublin Regulation, such as family unity criteria, right to appeal against the application of Dublin criteria and deadline to appeal against the transfer decision etc.

Undoubtedly, Southern Member States serving as the main gateways to Europe for third country nationals are in absolute need of European Union solutions on the basis of solidarity and fair responsibility sharing. In this context, the revision of the Dublin III Regulation and the introduction of a permanent allocation mechanism among European Union states is a key issue for Greece. One can hardly wonder why Germany would then be interested in reforming the Dublin Regulation if a more flexible "Quasi-Dublin" system- tailored to its needs- has already being established. Bilateral agreements, such as this, with one of the most prestigious EU countries, could draw away any possibility of a positive revision of the Dublin Regulation for Southern Member States in the near future.

In any case, this "administrative arrangement" marks an alarming development in the context of Greece’s migration policy. To date, Greece has signed and ratified a number of agreements on the readmission of persons irregularly entering or staying in its territory. For all these agreements, the usual process of concluding international treaties was followed: Signing of an agreement, protocol, or treaty and its ratification by the Parliament, according to Article 36 of the Greek Constitution. On the contrary, in the present case, it is the first time that a readmission agreement is concluded by Greece through an exchange of letters between Ministers. Though such an agreement is totally valid and binding under international law, the fact that it not only deals with international relations and migration policy but ultimately with human rights, is concluded away from parliamentary scrutiny and procedures – without even being published in the Government Gazette – raises important concerns on transparency and the rule of law.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: Fortune

Lock ‘em up: the proposal to amend the EU’s Returns Directive

Steve Peers, Professor of Law, University of Essex

One of the key EU laws regulating migration is the Returns Directive, now nearly ten years old, which regulates the main aspects of irregular migration by non-EU citizens. It requires Member States in principle to issue a return decision to every non-EU citizen not authorised to be on their territory, and to enforce that decision by removing the person concerned. In some cases, irregular migrants should be given a period for voluntary departure, so they won’t be subject to forced removal. Member States are required to issue entry bans to many of those subject to a return decision, but must provide for basic remedies to challenge expulsion. There are also rules on the grounds for detention of irregular migrants and their conditions during detention.

When it was adopted, NGOs supporting migrants believed that the Directive set an inexcusably low standard. However, in practice the CJEU has interpreted the Directive more liberally than some expected. I discussed this in detail in a paper published in 2015, and there have been several more CJEU judgments interpreting the Directive since then: Celaj (discussed here), Affum, Ouhrami, Gnandi and KA. For instance, the case law limits the use of the ordinary criminal law to jail irregular migrants, requiring Member States to use the administrative detention rules in the Directive in most cases. The jurisprudence also establishes a limited right to a hearing for irregular migrants (discussed here), and in some extreme cases provides for a basis to prevent expulsion of irregular migrants, and secure their basic rights to health care in the meantime (as discussed here).

The case law has been sufficiently liberal that in light of the perceived refugee ‘crisis’ of the last three years, it’s the EU Commission and Member States who are now concerned about the law, because in their view it is not stringent enough. This approach was set out in an ‘action plan’ and a recommendation issued by the Commission in 2017, as well as a revised Returns Handbook. They represented a change of tone from the 2014 Commission report on the implementation of the Directive, discussed here.

In 2014, the Commission urged Member States to apply the Directive generously, while in 2017 it recommended that they apply it as strictly as possible. But there are limits to the latter strategy without amending the legislation to lower standards, and today the Commission did just that, tabling a proposal to amend the Directive. To become law, it must still be agreed by the European Parliament and the Council (Member States’ interior ministers). It forms one of a number of measures proposed or adopted in recent years to strengthen migration control in light of the perceived crisis, including changes to the EU’s Frontex border agency (discussed here), and greater use of the EU’s Schengen Information System to enforce entry bans and expulsion orders (the agreed text is here).  Another proposal to give further powers to Frontex – including to assist more with expulsions – was also released today.

The UK, Ireland and Denmark opt out of this Directive – although it will apply to UK citizens in the participating Member States after Brexit, in the event that they are irregular migrants.

The new proposal

The first change in the proposal is to define ‘risk of absconding’. The effect of such a definition is to make it easier to refuse a prospect of voluntary departure, and correspondingly easier to justify detention. Reducing the number of people given the chance of voluntary departure will in turn increase the number of those subject to an entry ban.   

The list of cases which might constitute a risk of absconding is long (there are sixteen factors listed) and non-exhaustive (‘at least’). Some of the grounds are very broad (‘illegal entry’). Member States will have to apply these criteria on a case-by-case basis, but four of the grounds create a rebuttable presumption: using false documents et al; opposing expulsion violently or fraudulently; not complying with a measure like a reporting requirement; or violating an entry ban.

There’s a new obligation for irregular migrants to cooperate with the authorities, which reflects CJEU case law such as KA. The proposal does not, however, add the right to a hearing expressly into the Directive. Member States have a new obligation to issue a return decision as soon as a migrant loses a right to a legal stay, or an asylum seeker’s application is turned down at first instance. In theory this just repeats the underlying obligation to issue a return decision to all irregular migrants, but the Commission states that not all Member States do this. The issue of a return decision after a first-instance refusal of an asylum application takes account of the Court’s judgment in Gnandi: asylum-seekers cannot be regarded as irregular migrants until a refusal of their application at that stage. The implications of this for appeals are discussed further below.

Voluntary departure is tightened up. First of all, Member States need no longer give a seven-day minimum of time for an irregular migrant to depart. Secondly, the three cases where Member States can opt to refuse to give the irregular migrant a chance to leave voluntarily – risk of absconding, manifestly unfounded or fraudulent application for legal stay, and risk to public policy, public security and public health – are replaced by an obligation to refuse the chance of a voluntary departure in such cases. As noted above, the effect of this change is bolstered by including a wide definition of what might be considered as a risk of absconding. Although the CJEU has narrowly interpreted the exception for public policy, et al, as discussed here, this matters less now that the ‘risk of absconding’ ground is widely defined.

There’s a new obligation to try to confirm the identity of the irregular migrant who doesn’t have a travel document, and also to obtain such a document. The thinking is presumably that this should facilitate the expulsion process. Non-EU countries sometimes insist on such documentation before readmission, and as the Commission notes, its proposal is consistent with separate recent proposals to amend the EU’s visa laws (discussed here) to punish non-EU countries for non-cooperation.

Next, there’s a change to the rules on entry bans. Member States may impose an entry ban on an irregular migrant without making a return decision, if they detect the irregular migrant on his or her way out of the EU. This would not be an expulsion measure, but a means of trying to prevent the person concerned from coming back in future. Imposing an entry ban would only apply in such cases ‘where justified on the basis of the specific circumstances of the individual case and taking into account the principle of proportionality.‘

As noted above, there’s also an implied change to the rules on entry bans too. Since an entry ban must be imposed when an irregular migrant is refused the possibility of voluntary departure (subject to exceptions in individual cases), narrowing down the cases where voluntary departure is possible will have the knock-on effect that more entry bans are issued.  

Next, there’s a new obligation to set up a ‘return management system’, comparable to Member States’ obligations relating to border control and asylum. This will have no direct impact upon irregular migrants.

There are several changes to the rules on remedies. First, any remedy must be before a judicial authority, not an administrative authority. This implicitly takes account of recent CJEU case law on appeals against refusals to issue a visa (El-Hassani), where the Court said that the EU Charter of Rights requires judicial control of immigration decisions.

Next, a new clause states that failed asylum seekers have only one instance of appeal against a return decision, if they have already had effective judicial review within the asylum process. This transposes the recent Court judgment in Gnandi. A further new clause, also taking account of CJEU case law, states that where the irregular migrant has concerns about refoulement (being sent to an unsafe country), at last the first level of appeal must have suspensory effect, ie stopping removal from the country. The irregular migrant can ask for suspensory effect in the event of a further appeal, but the national court must rule on that request within 48 hours. Furthermore, these possibilities don’t exist where there have already been proceedings concerning asylum or legal migration status, unless there are new issues in the case. Finally, failed asylum seekers will have only five days to appeal a return decision.

The proposal then moves on to detention. There will now be three grounds for detaining irregular migrants, rather than two; and anyway this list will become non-exhaustive (the word ‘only’ will be deleted). The first ground – risk of absconding – will be broadly defined, as we have already seen. The second ground, which was already broadly defined, remains ‘avoids or hampers the preparation of return or the removal process’. The new ground is where the irregular migrant ‘poses a risk to public policy, public security or national security.’ This new ground matches one of the grounds to detain asylum seekers in EU asylum legislation, which the CJEU has interpreted narrowly (as discussed here); but this hardly matters when the other two grounds for detention are broadly defined, and the whole list is non-exhaustive.

Another change relates to time limits: Member States’ maximum time for detention must be at least three months. This will not mean that all irregular migrants must be detained for that long, only that this must be a possibility on the books as a maximum period of detention. The other current rules on detention time limits – six months as the normal time limit, a further twelve months as a possibility in special circumstances – are retained.

Finally, a new clause sets out special rules for failed asylum seekers at border posts, effectively derogating from some key standards in the Directive. They must be given a standard ‘tick-box’ form setting out the return decision, rather than a reasoned explanation. In principle there’s no chance for voluntary departure, except where the migrant holds a valid travel document (handed over to the authorities) and cooperates fully. Such migrants will have only 48 hours to appeal a return decision, and suspensive effect only applies where there are significant new findings or there was no effective judicial review already. Detention is apparently always justified, with a four-month time limit; but then the proposal provides for the regular time limits to be applied on top of this, if return is not possible.

Comments

This proposal is entirely concerned with facilitating the expulsion of irregular migrants, and detaining them to that end – in addition to imposing entry bans to make sure they do not return. The narrower possibilities to obtain a period of voluntary departure will mean surprise knocks at the door, detention time and forced removal for more irregular migrants. More legal challenges will be fast-tracked, with the time limits in this proposal arguably below the standards set by CJEU case law (see the Diouf judgment). More migrants will be detained, and the Member States with the most generous approach to detention time limits will have to be more stringent.

While the proposal does not directly affect the case law that limits Member States’ use of criminal law to detain irregular migrants, it will to some extent circumvent the limits in that case law indirectly, by giving Member States more powers to detain irregular migrants in the context of administrative law instead. Note, however, that the rules on detention conditions would not be changed; and the continued requirement to channel immigration detention largely away from the criminal law process should prevent the family separation we have seen in recent months in the USA, which results from applying criminal law detention to irregular migrants who are parents.

Will the proposal impact upon the declining rates of expulsion? (45% in 2016 and 36% in 2017, according to the Commission) It’s hard to tell, because there’s no proper impact assessment alongside the proposal: this is not evidence-based policy-making, or at least not transparently so. Some of the proposals might possibly backfire: for instance, if the consequence of an irregular migrant leaving the EU is being detected and then subjected to an entry ban, the irregular migrant concerned might just decide not to leave at all.

In any event, the effectiveness of expulsion policy depends partly upon cooperation of non-EU States, and this proposal can’t affect that – although, as noted above, there are other EU initiatives underway on that front. Detaining more people has a cost for national budgets, but this proposal overlooks this awkward fact. Anyway, without additional cooperation from outside the EU, constructing more detention centres will not by itself increase the rate of expulsion, but merely increase the cost of irregular migration for national budgets and the misery of the persons concerned.

Peers & Barnard: chapter 26

JHA4: chapter I:7

Photo credit: Robert Hickerson on Unsplash