The Future of Temporary Protection in Türkiye: Return of Syrians after the Fall of Assad

 

Dr. Ayşe Dicle Ergin, Assistant Professor, Bilkent University Faculty of Law

 

Photo credit: Henry Ridgwell, Voice of America news, via Wikimedia Commons

 

As of today, the vast majority of approximately 2.8 million Syrians in Türkiye, having fled the conflict and civil war, are under temporary protection. This figure does not include the 73,331 Syrians with residence permits. The regime applicable to the temporary protection beneficiaries is set out in the Law No. 6458 on Foreigners and International Protection (LFIP) and the Temporary Protection Regulation (TPR).

 

Following the fall of the Assad regime, there has been an expectation that Syrians will soon return to their home country. However, a realistic assessment of the current situation is essential to avoid fostering misguided expectations. This blogpost will examine the meaning and scope of temporary protection, the conditions for its termination, voluntary return, and the circumstances under which Syrians may be able to return.

 

Temporary Protection

 

Temporary protection is a regime that enables states facing a mass influx of refugees to provide emergency intervention without conducting individual refugee status determination procedures. It addresses protection gaps by ensuring the fundamental rights of individuals fleeing armed conflict and guarantees protection against refoulement. This regime was originally conceived as a return-oriented protection mechanism.

 

Under the temporary protection regime, both refugees covered by Article 1A(2) of the 1951 Convention and individuals eligible for complementary protection within the broader context of forced migration are provided with legal protection. This regime aims to use the host country’s resources efficiently while avoiding the perception that beneficiaries will remain in the host country permanently. In this context, the general expectation and the most commonly preferred solution is the return of beneficiaries to their home countries.

 

The international protection regime is founded on specific principles and criteria established under international law, and it is accepted that these principles largely apply to temporary protection, with the principle of non-refoulement serving as a key criterion in this context. As outlined in Article 33 of the 1951 Convention, this principle prohibits the expulsion or return of refugees to territories where they would face a risk of persecution. While this provision specifically applies to refugees, the second paragraph of the article allows for two exceptions based on public order and public safety considerations.

 

However, with the growing influence of human rights law, the principle of non-refoulement has been interpreted more broadly over time. As reflected in key international legal instruments, this broader interpretation extends to ‘everyone’ without exception. The case law of regional human rights courts has significantly contributed to this expansive understanding, solidifying non-refoulement as a fundamental principle of human rights law and international customary law.

 

The ECtHR interprets the principle of non-refoulement within the framework of Article 3 of the European Convention on Human Rights (ECHR), which prohibits torture and ill-treatment in an absolute manner. In this regard the ECtHR has adjudicated cases involving both generalized violence and national security concerns. These rulings affirm that the principle of non-refoulement constitutes a non-derogable obligation under the regional law of the Council of Europe, of which Türkiye is a member.

 

The principle of non-refoulement is a fundamental and binding principle of the international protection regime, ensuring that no one is returned to a territory where they would face a risk of persecution, torture, inhuman treatment, or punishment. Türkiye upholds this principle through legal guarantees enshrined in Article 17 of its Constitution, Articles 4 and 55 of the LFIP, and Article 6 of the TPR.

 

End of Temporary Protection

 

As reflected in its name, temporary protection is granted for a limited period; however, determining the exact duration is not always possible. In the 1990s, it was widely accepted that temporary protection should not extend beyond five years, whereas the current upper limit is generally set at three years. The EU Temporary Protection Directive (EU TPD) also stipulates a maximum protection period of three years, provided that the reasons for temporary protection persist (EU TPD Art. 4). However, following the Ukraine crisis, EU practice has shifted towards extending this duration despite ongoing legal debates.

 

In contrast, Turkish national legislation does not specify a maximum time limit for the temporary protection regime (TPR, Art. 10). Temporary protection may cease either individually or collectively. In cases of collective cessation, the President may terminate temporary protection upon the proposal of the Ministry of Interior (TPR, Art. 11). Following such a decision, the President also determines the durable solution for beneficiaries of temporary protection, which may include: full cessation to facilitate return to the country of origin, collective granting of status, individual assessment of applications for international protection, or the provision of a legal right to stay under the conditions outlined in the LFIP). According to the Temporary Protection Regulation, the primary expectation after cessation is the return of beneficiaries to their home countries (TPR, Art. 14). The TPR further mandates that authorities provide the necessary facilitation and assistance for those opting for voluntary repatriation (TPR, Art. 42). The grounds for individual termination of temporary protection include voluntarily leaving Türkiye, availing protection of a third country, being admitted to a third country for humanitarian reasons or resettlement, passing away, or acquiring a legal right to stay or Turkish citizenship as stipulated in the law (TPR, Art. 12).

 

Voluntary Repatriation and Return

 

Voluntary repatriation is a key concept in situations where the conditions that initially necessitated protection in the host country no longer exist in the country of origin. In the context of international protection, the international community, particularly the UNHCR, recognizes three durable solutions: voluntary repatriation, local integration, and resettlement. While the Global Compact on Refugees expands these solutions with the inclusion of ‘complementary pathways’, voluntary repatriation remains the most widely favoured durable solution by the states. This preference is reaffirmed not only in UNHCR Executive Committee conclusions but also promoted by the international community in the Global Compact on Refugees, which emphasizes facilitating the sustainability of returns.

 

The 1951 Convention does not explicitly address voluntary repatriation. However, international human rights law establishes the fundamental principle that no individual shall be deprived of the right to return to their own country (UDHR, Art. 13/2; ICCPR, Art. 12/4; CERD, Art. 5/d; ECHR, Protocol No. 4, Art. 3/2; African Charter on Human and Peoples’ Rights, Art. 12/2; American Convention on Human Rights, Art. 22/5). The key element of this process is its ‘voluntary’ nature - meaning the return must be based on the free will of the individual. Consequently, as highlighted by UNHCR, voluntary repatriation can only be considered a viable solution under international law if conditions in the country of return ensure the safety, dignity, and rights of returnees.

 

Although voluntary repatriation and cessation are distinct legal procedures related to refugee returns, they are closely interconnected. Article 1(C) of the 1951 Convention specifically regulates cessation in cases where international protection is no longer necessary or justified. In the Turkish legal framework the conditions necessitating the cessation of international protection are stipulated for refugee, conditional refugee and subsidiary protection statuses in Article 85 of the LFIP in line with the 1951 Convention. Return to the country of origin after the termination of temporary protection, which is regulated in Article 14 of the TPR, can also be considered as a form of cessation. This is because when the circumstances that necessitated international protection no longer exist, protection ceases, making return to the country of origin a natural outcome.

 

On the other hand, there are no uniform rules regarding the modality of voluntary repatriation. Relevant material and procedural conditions may vary depending on government policies. While return is always possible, ‘repatriation’ refers specifically to the facilitation of return. According to its Statute, UNHCR is tasked with promoting voluntary repatriation (UNHCR Statute, Art. 8/c).  Yet UNHCR verifies the following essential conditions before engaging in the voluntary repatriation of refugees: (i) changes of a profound nature in the country of origin, (ii) voluntary nature of the decision to return, (iii) timely dialogue between the host country, the country of origin and UNHCR and clear allocation of responsibilities through a tripartite agreement, and (iv) ensuring that the safety and dignity of returnees are respected.

 

UNHCR Handbook on Voluntary Repatriation emphasises the importance of ensuring that return is voluntary, safe, dignified, sustainable, and durable. These standards are also underlined in relevant literature (see: here, here, here and here). Moreover the voluntary nature of return means that it must be an informed choice rather than a result of reduced assistance and unbearable conditions in the host country. This requires the transparent provision of detailed information about security and living conditions in the country of origin to potential returnees. Dignified return necessitates guarantees against potential violations of the individual’s rights, whereas, according to UNHCR, safe return is only possible when three elements are met: legal, physical, and material safety. Physical safety requires a secure environment that ensures freedom of movement and access to territory. Legal safety entails equal treatment upon return. Material safety is established through access to humanitarian assistance. These factors are directly proportional to progress in improving security and living conditions in the country of origin. Regarding the threshold for improvement in conditions, UNHCR Discussion Note considers a “general improvement in the situation of the country of origin so that return in safety is both possible and desired” sufficient (UNHCR Discussion Note, para. 8.A.i). However, this threshold is open to criticism for being lower than the one expected for cessation while it is argued that repatriation should not take place before the circumstances have changed.  On the other hand, sustainable return could be achieved through facilitating and monitoring the reintegration of returnees.

 

In short, voluntary repatriation is a solution that can be implemented when, based on an objective assessment, the circumstances that led to displacement no longer exist, return is deemed feasible and in line with the principle of non-refoulement, and the process takes place in a safe and dignified manner. Accordingly, individuals’ return decisions will be shaped by these conditions.

 

Expectations for Return of Syrians to Their Country in the Short Term After the Fall of the Assad Regime and Relevant Obligations

 

As a country that has suffered extensive damage from conflicts, Syria remains unstable, with significant uncertainty about its future. Currently it is impossible to predict when voluntary repatriation will become a viable option for the beneficiaries of temporary protection. Several factors must be considered as a priority, including the uncertainty over which actor/s will control different parts of the county, the accommodation and housing needs of returnees, existing infrastructural deficiencies, and the limited availability of employment and livelihoods opportunities.

 

UNHCR reported the return of 270,000 Syrians from the neighbouring countries to Syria as of 5 February 2025 including 81,576 returnees from Türkiye. However, it remains unclear whether these returns are permanent. Many Syrians may have travelled back their home country to assess conditions, visiting their homes while waiting for the summer holiday to bring their children and other family members along. Despite these numbers, it is too early to draw optimistic conclusions in the short term.

 

Accordingly, certain factors need to be considered for a realistic plan:

 

Respect for legal obligations and the principle of non-refoulement:

 

As outlined above, the principle of non-refoulement, governed by Article 33 of the 1951 Convention, is reinforced by fundamental human rights principles. This protection is embodied in the Turkish legislation and the ECHR. Legal provisions safeguarding the right to life and prohibiting torture impose a duty on states to protect individuals from potential violations of these rights. In line with this, both the Turkish Constitutional Court (TCC) and the ECtHR have issued recent rulings assessing whether national authorities have adequately reviewed and corroborated applicants’ claims regarding the violation of their right to life or the risk of torture or ill-treatment upon return to conflict areas. (See A.A. ve A.A.; Abdulkerim Hammud; Hüsam İbrahim; Ali Elhüseyin cases by the TCC and L.M. and others v. Russia; M.D. and others v. Russia; Akkad v. Turkey cases by the ECtHR)

 

Therefore, regardless of whether temporary protection terminates collectively or individually, the State’s obligations under international law remain in effect. In all cases, states are required to uphold their legal commitments and respect the principle of non-refoulement. Moreover, returnees should be provided with comprehensive information and guidance to ensure their informed consent for safe and dignified return, thereby mitigating the risk of human rights violations.

 

States can facilitate “go-and-see” visits after conflicts end, allowing potential returnees to assess security conditions, find accommodation, seek employment or check the general situation in their home countries. Some of the visits facilitated by the Turkish Ministry of Interior after the fall of the Assad regime can be considered within this scope. The conditions of such exploratory visits are also included in the EU temporary protection framework.

 

Planning for processing of individual applications of those in need of protection:

 

Under the TPR the beneficiaries of temporary protection are not permitted to file individual asylum applications, and applications submitted before the TPR came into force cannot be processed (TPR, Art. 16 and Provisional Art. 1). In the event of collective termination of temporary protection, it should be a priority to plan how to process individual applications of those in need of international protection and what steps to take for those who no longer have a legal right to stay in the country. Since circumstances will vary on a case-by-case basis, status determination procedures must be initiated for those who claiming to be unable to return return due to their ongoing need for international protection. Assessments may be conducted on an individual or family basis to determine the place of origin (in this case, in Syria) and to establish whether it is safe for return, whether such individuals qualify for international protection, and if eligible, what status will be granted to them. These procedures will be essential in ensuring that protection needs are met while maintaining compliance with legal obligations.

 

Adoption of realistic approaches and transparent provision of information both to Syrians and the society:

 

Historical examples demonstrate that the return of Syrians is likely to be a realistic option only in the medium to long term. Past mass influx experiences have shown that states often hold overly optimistic expectations regarding safe and rapid returns. For instance, it took more than a decade for approximately 2 million temporarily protected Bosnians to return to Bosnia and Herzegovina following the Yugoslav crisis. Similarly, the return of those forcibly displaced due to conflicts in Burundi, Cambodia, Liberia, and South Sudan was also a prolonged process.  These examples suggest that adopting a cautious approach rather than an overly optimistic one would provide a more realistic perspective.

 

The UNHCR’s Position on Returns to Syria, published in December 2024, highlights that Syria is not yet safe for large-scale voluntary repatriation, emphasizing that returns should only begin once security, societal, and humanitarian issues are adequately addressed (para. 3). That said, it would also be inaccurate to portray the return of Syrians as an impossible prospect as repatriation to safe areas remains a possibility when based on informed consent. However, states, UNHCR, and relevant stakeholders must work together to facilitate returns through a multi-stage plan with a realistic timeline.

 

Ensuring sustainable reintegration of voluntarily returning returnees:

 

Furthermore, the sustainability of returns to Syria depends on development support for Syria and increased assistance and support to Türkiye, rather than the symbolic funding allocated in recent years. Even as of 2019, Turkish authorities reported having spent $40 billion on supporting Syrians in Türkiye. Meanwhile, following the destruction caused by internal conflicts and international sanctions, the estimated cost of reconstruction in Syria ranges between $250 billion and $400 billion.

 

Significant infrastructure development, well-equipped human resources, and targeted development assistance will be essential for any new government in Syria to create conditions conducive to return and stabilize the country. To secure such assistance from the international community, the new government must establish an inclusive and democratic regime.

 

Conclusion

 

There is a perception that large-scale returns to Syria will take place soon. However, given the situation on the ground, this is dependent on political, economic and legal realities. Voluntary repatriation is not only a political matter but also a legal one, as it must adhere to international standards that ensure safety, dignity and sustainability. Various challenges could facilitate or hinder this process including political fragmentation, economic instability and security concerns. Above all a well-managed and inclusive reconstruction process will be essential. This process would demonstrate how a nation composed of diverse ethnic and sectarian groups, with weak sense of nationhood and limited resources, can transform into a stable and secure country within a relatively short period. Ultimately, time will determine whether large-scale voluntary repatriation to Syria will be possible. While a democratic and stable government is the ideal scenario for the future of Syria, the opposite also remains a possibility in the near future.

 

 

Pyrrhic victory for the Greek government: the CJEU rules on Turkey as a “safe third country”

Professor Steve Peers, Royal Holloway University of London

Photo credit: Mstyslav Chernov, via Wikimedia Commons

Hamster idiom credit: Adam Sharp

(Thanks to Zoe Gardner for discussion of the case; the following analysis is my own)

 

Introduction

Remember the ‘refugee crisis’ of 2015-16? One part of the EU’s response to it was to negotiate a ‘joint statement’ with Turkey (see comments and criticism here, here and here) that, among other things, led to Turkey agreeing to take back asylum-seekers from the Greek islands. Greece facilitated the application of this process by determining that Turkey was a ‘safe third country’ (ie that asylum-seekers could and should have applied there instead, given that this other country is ‘safe’) under EU asylum law, initially for Syrian asylum-seekers in the eastern Greek islands. Faced with a legal challenge to this determination, the Greek Council of State ruled in 2017 that the determination was legal, deciding by a 13-12 vote not to ask the CJEU to interpret the issue of EU law at stake. For its part the EU General Court (upheld on appeal by the CJEU) rejected legal challenges to the joint statement, on the frankly bizarre ground that the European Council had nothing to do with the EU/Turkey joint statement (which referred to EU law issues such as visa waivers).

Subsequently in 2020, Turkey decided to refuse all readmission of asylum-seekers from Greece, stating that (as quoted in note 10 of the Advocate-General’s opinion):

 Responding to repeated requests from the Greek authorities and the European Commission regarding the resumption of return operations, [the Republic of Türkiye] has stated that no return operation would take place unless the alleged pushbacks along the Turkish-Greek border stop and [the Hellenic Republic] revokes its decision to consider [the Republic of Türkiye] a Safe Third Country.

Greece nevertheless decided to list Turkey as a ‘safe third country’ more broadly in 2021, for asylum-seekers from Syria, Afghanistan, Pakistan, Bangladesh or Somalia; it added Albania and North Macedonia to its ‘safe third country’ list soon afterwards. In light of the EU law rules on ‘safe third country’ (discussed further below), two NGOs (the Greek Council for Refugees and Refugee Support in the Aegean) decided to challenge the Greek government decision to list Turkey, resulting this time in the view of the Council of State in February 2023 (by an 18-4 vote) that the listing of Turkey was invalid, on the grounds that EU law precluded designating a country which refused to readmit asylum-seekers as a ‘safe third country’. (Other EU law arguments against the designation of Turkey were rejected by the national court and not referred to the CJEU: see the analysis by Minos Mouzourakis).  But unlike in 2017, there was great deference to the view of the (much smaller) minority (two judges apiece argued that the issue of readmission was relevant instead when ruling applications inadmissible, or when enforcing that decision). So the national court decided to ask the CJEU questions about the interpretation of EU law on the readmission point before giving its final ruling. The CJEU delivered its judgment last Friday.

This is not only the first time that the CJEU has been asked about an aspect of the EU/Turkey asylum relationship. Remarkably, despite the huge number of asylum seekers that have come to Greece over the last decade and more, this is also the first time that the CJEU has been asked any questions about EU asylum law by any Greek court.

 

EU legal framework

Legislation

The definition of ‘safe third country’ for the EU is currently set out in Article 38 of the EU’s asylum procedures Directive. (This is about the ‘safety’ of non-EU countries, ie it is distinct from the EU Member States regarding each other as ‘safe’ countries, under the Dublin rules) First, Article 38(1) provides that the (optional) ‘safe third country’ concept can ‘only’ be applied if Member States are satisfied that certain ‘principles’ are ensured for asylum-seekers in that country: (a) ‘life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion’; (b) ‘there is no risk of serious harm as defined in’ the EU qualification Directive; (c) ‘the principle of non-refoulement in accordance with the Geneva [Refugee] Convention is respected’; (d)  ‘prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected’; and (e) ‘the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention’.

Secondly, Article 38(2) requires Member States to subject the application of the ‘safe third country’ rule to national law rules, including: (a) ‘requiring a connection between the applicant and the third country concerned on the basis of which it would be reasonable for that person to go to that country’; (b) ‘rules on the methodology by which the competent authorities satisfy themselves that the safe third country concept may be applied to a particular country or to a particular applicant. Such methodology shall include case-by-case consideration of the safety of the country for a particular applicant and/or national designation of countries considered to be generally safe’; and (c) ‘rules in accordance with international law, allowing an individual examination of whether the third country concerned is safe for a particular applicant which, as a minimum, shall permit the applicant to challenge the application of the safe third country concept on the grounds that the third country is not safe in his or her particular circumstances’. Also, an asylum-seeker must ‘be allowed to challenge the existence of a connection between him or her and the third country’, as referred to in point (a).

Next, Article 38(3) requires Member States to inform the applicant that the principle is being applied to them, and also to give the asylum-seeker a document informing the supposedly ‘safe’ third country that the merits of their asylum claim have not been examined.

Crucially for this case, Article 38(4) then provides that:

Where the third country does not permit the applicant to enter its territory, Member States shall ensure that access to a procedure is given in accordance with the basic principles and guarantees described in Chapter II. [ie an ‘ordinary’ examination of the merits of an asylum claim]

Finally, Article 38(5) obliges Member States to inform the Commission of their use of the concept.

The practical relevance of applying the ‘safe third country’ notion is (among other things) that it is a ground of (optional) inadmissibility under Article 33 of the Directive. And if the case is inadmissible, the asylum application is not further considered on the merits and has failed in that Member State (subject to an appeal of the inadmissibility decision, or the limited prospect of a ‘repeat application’, discussed further below). The failed asylum-seeker can then deprived of support as an asylum seeker under the reception conditions Directive and detained and removed under the Returns Directive. Of course, the impact of this is in theory ameliorated in ‘safe third country’ cases because the supposedly ‘safe’ country will readmit the person concerned and consider their asylum application properly. In practice, as we have seen, Turkey was explicitly and unambiguously refusing to readmit asylum-seekers from Greece in the context of the ‘safe third country’ concept.

Case law

The CJEU had interpreted the ‘safe third country’ rule in some prior case law, all concerning Hungary. First of all, in Case C‑564/18 (paras 29-51 of the judgment), the CJEU confirmed that the grounds of inadmissibility listed in the Directive were exhaustive (‘only’), and ruled that a national law applying a ‘safe third country’ principle to non-EU States where the asylum-seeker ‘as not exposed to persecution or a risk of serious harm, or in which a sufficient degree of protection is guaranteed’ was not consistent with the requirements of Article 38(1) of the Directive, in particular because it omitted the ‘non-refoulement’ requirement. Moreover, mere transit through the non-EU country was not enough for there to be a ‘connection’ with that country as required by Article 38(2).

Next, the Court reiterated these points in its judgment in Joined Cases C-924/19 and C-925/19 PPU (paras 148-165); but questions about what happens when the non-EU State refuses to readmit the asylum-seekers – the issue since addressed in last week’s judgment – were ruled inadmissible (paras 166-174). However, the Advocate-General’s opinion in that case discusses the issue (paras 107-127), taking the view that the refusal of readmission is only relevant at the point of enforcement of a decision based on the principle.  

Finally, in Commission v Hungary (Case C‑821/19), along with ruling on the criminalisation of assistance to asylum seekers, the Court again reiterated that the Hungarian law breached Article 38(1) and (2) of the Directive. The existence of a (then) pending proposal to amend the Directive on this point (since adopted as part of the 2024 asylum pact – but without some of the changes originally proposed) was irrelevant in determining whether a Member State was in breach of EU law at the time of the alleged breach.

 

Greek practice

As noted above, Greece had listed Turkey as a ‘safe third country’ despite Turkey’s refusal to readmit anyone in that context. While the CJEU judgment says nothing about the practice of the authorities, and the Advocate-General’s opinion says little (paras 65-68 of the opinion), one can find rather more information at the bottom of the ivory tower, in the recent Pro-Asyl report on the ‘safe third country’ principle in Greece, and in the annual AIDA report on Greece (‘safe third country’ section).

The reports state that over 10,000 asylum claims have been found inadmissible on the basis of the Greek listing of Turkey as a ‘safe third country’, although around 12,000 asylum claims have been found admissible (in some cases because the asylum-seekers argued that Turkey had not allowed them to make an asylum claim, or due to past exposure to refoulement, ie return to an unsafe country, or because they lacked a sufficient ‘connection’ with Turkey, on the basis of the national law implementing Article 38(2) of the Directive). Also, the reports are highly critical of the conclusion that Turkey is ‘safe’ – although the recent CJEU judgment does not address this issue, because the national court did not ask the CJEU about it.

Like the Advocate-General’s opinion, the Pro-Asyl study reports that Greek authorities apply the readmission test at the point of enforcement of a ‘safe third country’ decision. When Turkey then refuses readmission, the Greek bodies refuse to withdraw their prior decisions, leaving asylum-seekers to make a ‘repeat application’. But there are delays in registering these applications, and the authorities often reject them because they do not believe that the refusal of readmission is a ‘new element or finding’ (as required for a repeat application to be admissible under the EU Directive). But at least some courts rule against detention in such cases, given that there is no reasonable prospect of return (as required by the Returns Directive).

 

The judgment

The CJEU’s judgment began by answering the first question referred by the national court, rephrasing it as asking ‘in essence, whether’ the ‘safe third country’ rule in the Directive, ‘read in the light of Article 18 of the Charter’ on the right to asylum, ‘must be interpreted as precluding legislation of a Member State classifying a third country as generally safe for certain categories of applicants for international protection where, despite the legal obligation to which it is subject, that third country has generally suspended the admission or readmission of those applicants to its territory and there is no foreseeable prospect of a change in that position’.

First, the Court reiterated its case law that the grounds for inadmissibility of asylum applications in the procedures Directive (including ‘safe third country’ as defined in the Directive) are ‘exhaustive’, ie the Member States cannot add more grounds of their own (such as a divergent national definition of ‘safe third country’). It pointed out that the EU law definition ‘is subject to compliance with the cumulative conditions laid down’ in Article 38 of the Directive, as summarised above. But as the national court had already ruled that Greek law complied with the basic principles in Article 38(1), the CJEU did not examine that point. But it summarised the requirements for national law set out in Article 38(2) and the information obligations in Article 38(3), then recalled the Article 38(4) rule that ‘where the third country concerned does not permit the applicant for international protection to enter its territory, the Member States are to ensure that access to a procedure is given in accordance with the basic principles and guarantees described in Chapter II of that directive’.

In the CJEU’s view, it followed from this first from the wording of the Directive that a Member State can designate a country as ‘generally safe’ by ‘an act of general application’. The references to national law in Article 38(2) referred to such a designation, as did the preamble to the Directive. Also, the Directive did not make the validity of such a general act ‘subject to the condition that it be proved that the applicants for international protection concerned will actually be admitted or readmitted to the territory of that third country’. This was not among the national law rules in Article 38(2); and the wording of Article 38(4) implied that the designation of the third country as ‘safe’ preceded the consideration of the issue of whether that country actually readmitted asylum seekers.

The CJEU also believed that this followed from the context of the Directive, in particular by comparison with the wording of the rules on ‘first country of asylum’ (ie where the asylum seeker already had protection, as distinct from where they could have sought it) on the readmission issue.

Finally, in the CJEU’s view, this interpretation also did not conflict with the objective of the Directive, as set out in the preamble, that in the interests of asylum-seekers in particular, asylum applications ‘should be made as soon as possible, without prejudice to an adequate and complete examination being carried out’. This objective was addressed by Article 38(4), requiring that a Member State ‘ensure’ access to an asylum decision on the merits, in accordance with the usual rules, if the ‘safe third country’ refused readmission. And then a key point:

54      It follows that, where it is established that the third country designated as generally safe by a Member State does not in fact admit or readmit the applicants for international protection concerned, that Member State cannot reject their applications for international protection as inadmissible on the basis of Article 33(2)(c) of Directive 2013/32. Furthermore, that Member State may not unjustifiably postpone the examination of those applications and must, inter alia, ensure that that examination is conducted on an individual basis, in accordance with Article 10(3)(a) of that directive and in compliance with the time limits set out in Article 31 thereof.

This interpretation, in the Court’s view, ‘is likewise not such as to deprive of any practical effect the right of an applicant for international protection, as enshrined in Article 18 of the Charter and given specific expression by that directive, to obtain the status of beneficiary of international protection, provided that the conditions required by EU law are met.

Having ruled, in effect, that the designation of Turkey was valid, the CJEU felt it was unnecessary to answer the second and third questions referred by the national court, on whether the refusal of readmission was a factor to be considered at the admissibility or the enforcement stage. But as we have seen, the Court had already de facto answered the second question: if it is ‘established’ that the ‘safe’ third country ‘does not in fact’ readmit the asylum seekers concerned, a Member State ‘cannot’ find their applications admissible, and must consider those applications on the merits (moreover, without ‘unjustifiable’ postponement, and subject to the deadlines in the Directive). And that renders the third question moot.

 

Comments

Greece can have a dog; but it will be wagged by its Turkish tail. That is the effect of the Court’s judgment: in more technical legal language, Turkey can remain on Greece’s ‘safe third country’ list, but the practical impact of this is zero as long as Turkey refuses to readmit asylum-seekers from Greece, because asylum applications cannot be found inadmissible on this ground. The wheel of designation of Turkey as a ‘safe third country’ keeps spinning, but the hamster of inadmissibility of asylum applications is dead. Let’s unpack this further, examining first the reasoning of the judgment and then its potential consequences.  

Judicial reasoning

The CJEU begins by, with respect, answering a ‘straw man’ question that it had not been asked.  The national court did not ask the CJEU if it was possible to designate ‘safe third countries’ at all; rather it asked if those countries could be designated if they failed to readmit asylum-seekers. The references to common principles on ‘safe third countries’ in the preamble to the Directive do not answer the question as to what those common principles are; a rule that failure to readmit precludes listing a country would be a ‘common principle’ too. However, the Court’s points that Article 38(2) on national law and (especially) Article 38(4) on readmission presume that the country concerned is already on a list are more convincing.

Most importantly, the Court’s finding that applications cannot be inadmissible on ‘safe third country’ grounds where the country concerned refuses to readmit, requiring a Member State to consider the merits of such applications, is particularly convincing.  Given that between Greece and Turkey the readmission will not take place, and in light of the evidence that repeat applications are difficult to make and are often rejected, this is the best way to ensure that the obligations set out in Article 38(4), coupled with the principle of considering applications as soon as possible, are met.

Unlike some judgments, this is not so much a ‘liberal’ or ‘activist’ interpretation of EU asylum law by the CJEU, but rather the overdue termination of conservative activism by the Greek authorities and lower courts. In light of the clear obligation in Article 38(4) to consider the merits of an asylum application if the asylum seeker is not readmitted to a ‘safe third country’, in the context of the absolute refusal of Turkey to readmit, the failure of the authorities to consider the merits of many of those applications, and of the courts to require them to do so, is unjustifiable and frankly shocking.

Consequences in practice

First and foremost, what happens to the 10,000 plus asylum seekers whose applications were already rejected as inadmissible? As noted above, some had previously tried to make repeat applications, but faced the difficulty that they had to invoke ‘new elements or findings’ in order to do so, which was often difficult to do. But their ability to invoke the ‘repeat applications’ clause in the Directive has now, as a consequence purely of the Court of Justice’s recent judgment, undergone a Copernican revolution. This is because the CJEU has previously ruled (see Joined Cases C-924/19 and C-925/19 PPU, paras 175-203, confirmed in Case C-216/22) that its own judgments on EU asylum law are a new element or finding in filing a repeat application, where those judgments are relevant and add significantly to the likelihood of an asylum application being successful. For those asylum-seekers whose application was found inadmissible on ‘safe third country’ grounds despite Turkey’s refusal to readmit them, last week’s judgment is obviously highly relevant; and overturning the finding that their applications were inadmissible equally obviously significantly increases the odds that their application will be successful. (Moreover, the judgment in Joined Cases C-924/19 and C-925/19 PPU is especially relevant by analogy here, since the prior national judgments which conflicted with a later CJEU judgment in that case also concerned an unlawful application of the ‘safe third country’ rules).

Therefore, if the rejected asylum-seekers apply again, the Greek asylum system will now have to decide on the merits of thousands of asylum applications that it wrongly ruled were inadmissible in the first place. A pending CJEU case referred from Ireland may be relevant by analogy in establishing whether Greece has to pay damages too. Finally, if any Afghan women asylum-seekers were among those whose applications were considered inadmissible, they can also rely on another CJEU judgment from the same day (discussed here) as a ‘new element or finding’, supporting the merits and fast-tracking of their gender-based persecution claims.

As for current or future applicants, their applications cannot be rejected as inadmissible on the grounds that Turkey is a 'safe third country' at all. Nor can they be rejected on the grounds that Turkey is a ‘first country of asylum’ for them: without even looking at the substance of that concept, the CJEU judgment explicitly stated that this principle cannot even get off the ground if the country concerned will not readmit the asylum seeker.

What about applicants after the asylum pact takes effect? The Court of Justice judgment from last week only mentions the new asylum procedures Regulation (discussed here) in passing, but as the Advocate-General’s opinion pointed out (in para 64), the interpretation of the Directive ultimately followed by the Court is explicitly set out in the Regulation, now being built into the definition of inadmissibility – also as regards the ‘first country of asylum’ principle (these grounds of inadmissibility can be invoked for either principle ‘unless it is clear that the applicant will not be admitted or readmitted to that country’). (See also recital 53 in the preamble to the Regulation). Whether the planned review of the ‘safe third country’ rules in the Regulation in 2025 affects these issues remains to be seen.

Finally, the Court’s judgment understandably only dealt with situations where the refusal of readmission is certain at the time of considering the possible application of the ‘safe third country’ rule. It did not deal with the scenario where refusal was merely a possibility – as that was hypothetical on the facts. How should such cases be dealt with?

The starting point is that the current Directive (recital 44 in the preamble) implies the possibility of an inadmissibility decision in that scenario: Member States do not have to examine the merits of an application where ‘there are grounds for considering that the applicant will be admitted or readmitted to that [‘safe’ third] country’. The inadmissibility rule in the new Regulation points in the same direction: it can’t be applied if ‘it is clear that’ readmission is not going to happen (see also recital 43 in the preamble to the Regulation). But this implies that the inadmissibility rule can be applied if it is not clear that readmission is ruled out. On the other hand, the recent judgment points to the importance of deciding on applications as soon as possible, without unjustifiable postponements, while ensuring the application of the Charter right to asylum. How best to reconcile the possibility of the adoption of inadmissibility decisions with the need to take decisions speedily and afford an effective prospect of having an asylum application decided on the merits, if there is uncertainty about whether readmission will actually take place?

The 2024 procedures Regulation already expressly provides (in recital 53 in the preamble) that access to the Member State’s asylum system must be offered again if readmission does not take place:

…if the applicant is eventually not admitted or readmitted to the third country after the application has been rejected as inadmissible, the applicant should again have access to the procedure for international protection in accordance with this Regulation

How should that principle apply in concrete terms? The best approach is to infer an obligation upon the Member State to act with due diligence to attempt to secure the readmission, starting as soon as it takes the inadmissibility decision (after any appeals, or the prospect of appeals, against that decision are spent). From that point, the Member State should have a reasonable time frame to request readmission from the non-EU country concerned. By analogy with the procedures Regulation time limit for deciding on inadmissibility, two months should be sufficient. If the non-EU country refuses readmission, or does not reply within the time limit set out in the readmission arrangements in force, or accepts readmission in principle but does not carry it out in practice within the relevant time limit, then the Member State’s obligation to consider the application on the merits where readmission does not take place must be triggered. Procedurally either the inadmissibility decision must be considered as withdrawn from that point (it makes sense to consider it as only provisional until readmission is actually carried out), or a repeat application must be considered – the requirement of new developments being satisfied by the inability, subsequent to the inadmissibility decision, to ensure readmission in practice within a reasonable time frame. The inadmissibility decision was based on the presumption that readmission would be secured within a reasonable period; that presumption has since been rebutted.

The final word on the impact of last week’s judgment should go to the asylum NGOs who brought the case:

…the CJEU’s judgment is of major importance because it overturns an arbitrary and abusive practice of the Greek authorities which has been in force for many years, of wholesale rejecting asylum applications as inadmissible under the safe third country principle, and puts an end to the denial of the rights of thousands of applicants, by prohibiting their rejection when there is no possibility of their readmission to Türkiye and dictating their individual examination in accordance with the Directive.

EU cooperation on migration with third countries: Time to address the genealogy of informal agreements in EU migration law

 

Dr Céline Hocquet, Teaching Fellow, Birmingham Law School, University of Birmingham

Photo credit: Issam Barhoumi, via Wikimedia Commons 

As the EU makes yet another proposal to cooperate with a third country on containing migrants outside its territory, it is urgent to engage with a critical analysis of the EU externalisation policy and the use of informal cooperation informed by the historical, legal and political context underpinning the EU external migration and asylum policy.

From the EU-Turkey to the EU-Tunisia deal?

On 11th June, the EU and Tunisia issued a joint statement agreeing to work together on a comprehensive partnership package. This partnership would cover several cooperation areas, including economy, energy, and migration. More specifically, the EU and Tunisia declared ‘the fight against irregular migration’ and ‘the prevention of loss of life at sea’ as their ‘common priority’. As such, it addresses migrant smuggling and human trafficking and bolster border controls and migrants’ registration and return. In exchange for Tunisia’s cooperation, the EU offers 100 million euros for border management, search and rescue, anti-smuggling and return operations in addition to a 1 billion euros investment plan for Tunisian economic development, including projects in the digital and energy sectors.

To those familiar with EU migration law and policy, this news will, no doubt, sound familiar.

Back in March 2016, the European Council published a press release following a meeting with representatives from the Turkish government. The EU-Turkey Statement – widely known as the EU-Turkey deal – traded the containment and return to Turkey of all irregular migrants arriving in Greece in exchange for 6 billion euros of EU funding.

At the time, arrivals of migrants to Europe crossing the Mediterranean Sea were characterised by the EU as a ‘crisis’. Emphasis was put on the exceptional nature of migration flows, the extraordinary numbers of migrants reaching European shores and the severe loss of lives during sea crossings. In this way, the situation faced by the EU and its member states was presented as critical and unprecedented. Its characterisation as a ‘crisis’, highly questioned by researchers, highlighted potential threats to the stability and security of the EU and/or its asylum system. Swift and exceptional measures were, therefore, necessary to put an end to the ‘crisis’ situation and its disruption. Such measures focused on further controlling irregular migration and EU external borders notably by externalising controls to third countries and third actors.

The EU-Turkey Statement was rapidly considered a blueprint for future EU migration and asylum policy developments by swiftly reducing migrant arrivals from Turkey to Greece. Despite criticisms raised against the precedent set by its informal nature and the threats caused to migrants and asylum seekers’ rights (see for instance on this blog here and here), similar non-binding and opaque partnerships, such as the 2017 Italy-Libya memorandum of understanding or the 2016 Afghanistan-EU Joint Way Forward, were signed between the EU or its member states and third countries to facilitate the return and/or containment of unwanted migrants.

Investigating the lineage of EU informal cooperation on migration

In my PhD thesis, I focus on this development. Namely, the EU’s increasing use of informal cooperation arrangements with third countries to control migration. More specifically, my research focused on investigating the implications of characterising the arrivals of migrants to Europe as a 'crisis' for the EU migration and asylum law system. Rather than focusing on informal cooperation developed as a result of the so-called ‘crisis’, I argue for the need to contextualise these developments within the EU migration and asylum law system as a whole. Only by doing so are we able to step away from crisis-driven considerations of emergency and security and understand the genealogy of the EU’s use of informal cooperation to externalise migration and border controls.

Using an iterative approach, I looked at the emergence and early development of the EU migration and asylum law system, especially some of its key measures. My analysis shows that informal cooperation such as the EU-Turkey Statement, the Afghanistan-EU Joint Way Forward, or the Italy-Libya Memorandum of Understanding, is far from being the result of unprecedented circumstances specific to 2015-2016 requiring swift and exceptional measures. Instead, they fit within the genealogy of the EU external migration and asylum policy. In my analysis, I identified a number of long-lasting tendencies that underpin the EU migration and asylum law system throughout its evolution. One of these tendencies is the use of informal and diversified cooperation frameworks and measures circumventing regular procedures and fundamental rights guarantees.

The legacy of the intergovernmental era

The emergence of a common approach to asylum and migration law at the then-EEC level shows the significant role of informal cooperation between member states. Indeed, well before the 2015 crisis member states developed cooperation informally among themselves using intergovernmental cooperation. A particular example is the cooperation developed within the Trevi Group. An ad hoc group of interior ministers initiated by the 1975 European Council in Rome, the Trevi group initially focused on member states’ cooperation regarding counter-terrorism before its scope expanded to asylum and immigration in the 1980s. This informal cooperation led to the adoption of several soft law measures in the field of immigration and asylum with long-lasting impacts on the common migration and asylum law system. The Dublin Convention and acts related to its implementations were, for instance, originally agreed upon as part of this ad hoc group before being incorporated into the acquis communautaire and formalised by Maastricht. Still, this shows how fundamental informal and opaque cooperation has been in shaping the common migration and asylum policy. The use of informal cooperation circumventing existing frameworks is not uncommon in the field of EU migration and asylum law. Informal cooperation agreements with third countries are therefore not the result of exceptional circumstances in 2015-2016. Rather, they fit within the legacy of the common migration and asylum policy and of how cooperation in these fields emerged in the first place.

Tampere and the comprehensive approach to migration

Although the EU cooperation on migration with third countries initially focused on entering into formal EU readmission agreements, the use of informal and diversified tools is not recent. Back in 1999, the Tampere European Council called for a comprehensive approach to external migration policy. This meant diversifying external measures related to migration by using other tools of EU external action and by addressing ‘political, human rights and development issues’ in third countries as means to reduce immigration to the EU. Signed on 23 June 2000, the Cotonou Agreement is considered the first example of the diversification of EU externalised migration and border controls. This agreement was primarily focused on EU development cooperation with African, Caribbean and Pacific states. Yet it also included readmission clauses to facilitate the return of migrants irregularly staying in the EU. It corresponds to the widening of EU migration-related cooperation to other aspects of external action. The allocation of 6 billion euros funding in exchange for Turkey’s cooperation on migration containment is therefore not a practice unique to the crisis context at the time of the EU-Turkey deal.

The EU’s Global Approach to Migration and Mobility and political agreements

Following the adoption of the Global Approach to Migration and Mobility (GAMM) in 2011, the EU introduced a new tool to develop its cooperation with third countries on migration: mobility partnerships. These political agreements are non-binding and aim at providing ‘tailor-made’ partnerships addressing shared concerns between the EU and its partner. They provide significant flexibility in terms of how to conduct the cooperation and the areas covered and contain little guarantees for fundamental rights. Therefore, although informal and opaque cooperation with third countries circumventing human rights and ordinary procedures was presented as a shift in the EU external migration policy justified by the 2015 crisis, my findings suggest otherwise. The EU’s use of non-binding and flexible tools to develop cooperation on migration and border controls with third countries pre-dated the crisis. The adoption of such informal agreements from 2015 onwards, therefore, constitutes a continuation of pre-existing practices.

Conclusion

This brief overview shows the significance of genealogy when analysing developments in the field of EU migration and asylum law. Crisis-focused analyses of these developments only provide a limited understanding as they ignore the underpinnings and historical, political, and social contexts in which these arrangements operate. Contrastingly, contextualising informal cooperation with third countries (such as the EU-Turkey deal or the emerging negotiations between the EU and Tunisia) within the broader evolution of the EU migration and asylum policy enables us to distance ourselves from the crisis or exceptional circumstances used to justify such measures. In doing so, it reveals that far from being policy innovation driven by emergency and security considerations, informal arrangements and diversified tools to externalise EU migration and border controls are a long-lasting legacy of earlier developments in the EU migration and asylum policy.

 

The considerable contribution of British lawyers to EU (migration) law

 

Kees Groenendijk, Professor Emeritus, Radboud University Nijmegen, Netherlands.

The final sentence of press release 10/20 on the consequences of the UK’s withdrawal from the EU for the Court of Justice reads: “The Court of Justice pays tribute to the major contribution of all its former British members to European integration in general and to the case-law of the Court of Justice and the General Court in particular.” After all dramatic statements on the behaviour of British politicians during the 47 years the United Kingdom was a Member State of the EEC and the EU, it may be right to take a minute to consider the British contribution to EU law, and EU migration and free movement law in particular.

Together with their Irish colleagues, the five British judges and the five British advocates-general who were members of the Court since 1973 with their experience as practising common law lawyers unmistakably contributed to the gradual development of that Court, modelled in the 1957 Treaty of Rome after the French Conseil d’Etat, towards a more open and dynamic court. The President of the Court in his speech at the farewell ceremony for the last British judge praised the British members for their pragmatism, common sense and their inimitable sense of humour. He also recalled that the Court only after the arrival of the British and Irish judges started to cite previous case-law in its judgments “because such citations did not necessarily form part of the legal traditions of the six original Member States” – though without adopting a strict rule of stare decisis.

The British judges and advocates-general

Francis Jacobs, the longest serving advocate-general (1988-2006), in his conclusions frequently and ardently pleaded for the protection of human rights and of individual rights in Community law, even if his pleas were not always immediately accepted by the Court (Fordham I.L.J (29) 2005, p. 690-715). His handbooks contributed to Community law being taken serious in the UK and elsewhere inside and outside Europe – among others The European Convention on Human Rights (Oxford UP 1975), The Court of Justice of the European Communities (Sweet & Maxwell 1977) and The Sovereignty of Law: the European Way (Cambridge UP 2007).

The first British judge, John Mackenzie Stuart, born, advocate and judge in Scotland, served 16 years in Luxembourg. As President of the Court he stimulate the establishment of the General Court, to which part of the Court of Justice’s tasks were transferred. His successor, Gordon Slynn, previously served seven years as Advocate-General. Judge Slynn’s successor David Edward, the second Scottish judge, at the occasion of the farewell of his successor wrote an interesting and topical essay entitled “EU and the Separation of Member States” on separatist [secessionist?] movements in Catalonia, Scotland and Flanders (Fordham I.L.J. (36) 2012, p. 1-18).

The penultimate British judge, Konrad Schiemann, was born in 1937 in Berlin. He survived the RAF bombardments on that city. Shortly after the War he migrated as an orphan to family in London. His colleagues at the Court of Appeal at his appointment in the Court in 2004 asked him what for heaven’s sake he was going to do in Luxembourg. Possibly the thrust of his answer was given in a speech in 2012 under the title The EU as a Source of Inspiration: in 1957, the year the EEC-Treaty was signed and twelve years after the end of the Second World War, displaced persons were still living in camps. The last DP camp in Western Europe closed in 1959. Judge Schiemann was aware of the EU as a guarantee against the human misery and disruption of war.

Among lawyers on the continent the last British A-G, Eleanor Sharpston, is known for her original and lucid conclusions. Her conclusion in the Vethanayagam case (C-680/17) case clearly illustrated that the Court could have chosen for an interpretation of the clause on remedies in the Visa Code which would have supported the rights of many visa applicants and their effective remedy against a visa refusal rather than allow Member State to impede access to such remedy. The UK government proposed to continue Sharpston’s tenure during the transitional period after Brexit during which, there would no longer be a British judge in the Court of Justice, whilst it may still rule on references of UK courts on free movement rights of Union nationals in the UK on the basis of the Withdrawal Agreement. But Barnier, on behalf of the EU, was uncompromising [unyielding?]. After the appointment of a Greek successor on her chair by the 27 remaining Member States in September 2020, she started cases against the Council and the Member States before the General Court which within a few weeks ingloriously ended in her own Court, illustrating that divorce always hurts.

In his farewell address the last British judge, Christopher Vadja, son of a Hungarian (refugee?) father and a German mother, reminded that the UK soon after it joined the EU recognized the important role of the Court of Justice for the development of EU law. The judgment in Defrenne v. SABENA (C-43/75) where the Court held the clause on equal pay for men and women in the EEC-Treaty to be directly applicable, provided an early lesson. Between 1973 and 2016 (the year of the Brexit referendum) the UK intervened in 281 cases in support of one of the parties and presented observations in 718 preliminary references from other Member States, more than any other Member State. “This policy of active engagement with the Court was to the benefit not just of the UK, the Court and the development of European law generally but also of many generations of English barristers, including myself, who were instructed to represent the UK.” One could add that his UK tradition contrasts with the practice of other States entrusting only a limited group of government officials with the representation in Luxembourg, thus restricting the distribution of knowledge of Union law among their national bar.

Until the mid-1990s during the oral hearings the lawyers would read out their pleadings and then go home. The experience of the last British judge in the General Court: “I recollect sad hearings from the old times in Luxembourg when days of preparation and hours of pleadings elicited not a single question.” (….) “[UK] judges are accustomed to test propositions verbally by asking provocative questions.” The British members stimulated their colleagues to put question to the parties. That tradition did not end with the departure of the UK: see a report on the Grand Chamber hearing on 12 October 2020 in the reference by a Dutch court on the independence of Polish courts and the European Arrest Warrant (C-354/20 PPU and C-412/20 PPU).

Judge Vadja also pointed to the limited public access to the hearings of the Court the hearing of the Wightman case on the question whether a Member State had the right to unilaterally revoke its Article 50 notification to withdraw from the EU a maximum of 300 persons could be present in the Grand Salle in Luxembourg. He contrasted this with the 300,000 persons who viewed the first day of the proceedings before the UK Supreme Court on that court’s live stream of the first Miller case on the equally important question whether the Article 50 notification required parliamentary approval and the more than 12 million views of the hearing before the UK Supreme Court of the second Miller case on the prorogation of the UK Parliament. Implicitly, he stressed the importance of the adage ‘Justice should be seen to be done’. Judge Vadja concluded his comparison with: “For my part, I look forward to the day when I can watch my former colleagues in action from the comfort of a sofa anywhere in the world.”

Common law principles, common history and current practice in Luxembourg

The President of the General Court in his address to his departing British colleague Ian Forrester stressed the important contribution of the common lawyers in the court in emphasising  the need for due process and procedural fairness. In his words: “Due process should prevail, even in terrorist cases. As Ian told us repeatedly, due process not only serves the cause of the defendant, but also the interest of the administration, for the very simple reason that procedural safeguards lead to better decision making. (…)  [T]he common law tradition adds a specific procedural dimension to the concept of fairness: the executive is a party before the judge as any other party. There is no reason why public authorities should, as a rule, benefit from privileged procedural positions, either as an appellant or as a defendant. This also applies when it comes to issues like access to evidence used in court proceedings.”

Judge Forrester, also from Scotland, started his farewell address with a short history lesson in French:

“Je vais vous parler de l’histoire, du droit européen, et de notre cour.  Mon père est né en 1899 et a fait l’entrainement d’un officier d’artillerie mais n’a jamais été déployé en France.  Un oncle a servi en Gallipoli.  Un cousin est mort en Birmanie. Une histoire familiale assez typique.  Nous avons tous rencontré ceux aujourd’hui fort âgés qui ont des témoignages étonnants de guerre et de conflit.  Deux juges de la Cour de Justice ont constaté qu’ils s’opposaient lors de la même bataille en Italie pendant notre dernière guerre civile européenne.  L’ancêtre d’un autre juge était soldat dans la bataille de Waterloo.  Un collègue me disait juste après le référendum en 2016 que ses deux grands-pères étaient soldats sur les deux côtés lors de la Bataille de la Somme.  Robert Schumann, fondateur, est né en Alsace-Lorraine, soldat allemand pendant la première guerre, français pendant la deuxième. Les guerres ont marqué notre continent.”

Judge Vadja used the occasion of his departure to give outsiders a look in the kitchen in Luxembourg. In an extensive interview he gave an insight in the work of a judge and the processing of cases inside the Court of Justice from the distribution of cases till the drafting of a judgment, including useful advice for lawyers pleading before the Court.

The amicus curiae and the independence of Polish judges

Less than two months after Brexit, the Court of Justice was confronted with the typical Anglo-Saxon legal concept of the amicus curiae, the expert outsider who upon request of the judge or on his own initiative provides the judge with relevant information for making her decision. In the ECtHR, which from its inception had more common law influence, the amicus curiae has a considerable history, codified in rules on third party intervention in Article 36(2) ECHR and Article 44(3) of the ECtHR Rules of Procedure. UNHCR, Amnesty International and Human Rights Watch, among others, regularly act as amicus curiae in proceedings in Strasbourg.

In the closed system of participants in proceedings before the Court of Justice the amicus curiae until recently was unknown. Its absence forces UNHCR to publish its observations on questions of interpretation of EU asylum instruments pending before the Court of Justice in notices distributed on the internet and in that way reaching the Court – or alternatively, produced as an annex to the observations of the lawyer of the asylum seeker (see fn 13 of the AG’s conclusion in Diakité, C-285/19).

The Grand Chamber of the Court in its judgment of 26 March 2020 in two joined references by Polish courts on the serious threats to the independence of judges in Poland, summarizes the main points of three letters of the Polish Ombudsman to the Court. The Ombudsman, who was not a party in those cases, in his letters pointed among others to the recent Muzzle Law, which considerably strengthens the new disciplinary regime for judges. That law was introduced with the aim to nullify the effet of the AK and others judgment of the Court of 19 November 2019 on the lack of independence of  new disciplinary chamber (“Chamber of Extraordinary Control and Public Affairs”) of the Polish Supreme Court. The Ombudsman referred to  the A-G’s conclusion that the Court did not have sufficient factual and legal material to enable it to rule on those requests. He described the growing number of disciplinary proceedings and administrative measures and the adoption of disciplinary measures against judges. Further, the Ombudsman informed the Court of Justice that the Polish National Prosecutor recently brought an action before the disciplinary chamber of the Supreme Court to waive immunity for the judge who made the reference for a preliminary ruling in one of the joined cases.

The Court of Justice noted that its Statute and Rules of Procedure do not provide for the interested parties referred to in Article 23 of the Statute to submit observations in response to the A-G’s Opinion. But it also observed that the Court “may at any time, after hearing the Advocate General, order the reopening of the oral procedure in accordance with Article 83 of its Rules of Procedure, in particular if it considers that it lacks sufficient information, or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to have a decisive influence on the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the interested persons.” The Court concluded that in this case it had sufficient information and that the new facts relied on by the Ombudsman “are not of such a nature as to have a decisive influence on the decision which the Court is called upon to give” (paras 27-30 of the judgment). The Court held the two references inadmissible because interpretation of the EU law provisions concerned was not necessary for deciding the disputes in the main procedures. After reaching that conclusion, however, the Court extensively reasoned that not being exposed to disciplinary proceedings or measures for bringing a matter before the Court, which is exclusively within their jurisdiction, constitutes a guarantee that is essential to judicial independence (paras 54-59 of the judgment).

Even, if the information provided by the Ombudsman did not have “decisive influence” on the outcome of the case, apparently, the Court considered that information to be relevant. The reference to Article 83 of the Rules of Procedure may well be the first step in the direction of the amicus curiae in Luxembourg. A month later, in April 2020, the Court of Justice ordered Poland to suspend pending disciplinary cases and stop bringing new case before the disciplinary chamber (C-791/19). That order was ignored by the Polish authorities and the disciplinary chamber.

Tenacious negotiators

At the Hohenheimer Tage zum Migrationsrecht, the annual meeting of German immigration, I often heard German friends complain about the tenacious  UK lawyers in the Council Working Groups during the negotiations on free movement, social rights or some of the asylum instruments. My standard reply was that the UK negotiators may be persistent, but once an EU instrument is adopted, the UK, generally, applied it far better than the Member State who simply copy past the instrument in their national law and leave every else unchanged in practice.

A sad example of this persistent negotiating is the reduction of the protection against expulsion of Union citizens on public order grounds. In 2004 the Council unanimously agreed to reinforce that protection in the Articles 27 and 28 of Directive 2004/38, adopted on the day before the accession of ten new Member States to the Union. Since 2008, the UK repeatedly pleaded in the EU Council of Ministers to give Member States more room for expulsion after a criminal conviction. Sometimes other West-European Member States joined this British plea (see Council document 15903/08 of 8 November 2008 and Council document 10313/13 of 31 May 2013). Each time such proposals met with opposition from the Commission and got insufficient support in the Council.

In the 2016 pre-Brexit-referendum-deal between PM Cameron and the European Council (discussed here), that Council agreed and the Commission promised to propose a considerable ‘softening’ of the public order clauses in Directive 2004/38, in case the UK remained in the EU. Finally, the UK achieved its aim during the Brexit negotiations. For EU nationals in the UK and for British nationals in the EU with residence rights under the EU-UK Withdrawal Agreement the protection against expulsion on public other grounds will be reduced to the level of the national legislation for conduct occurred after 2020 (Article 20 of the withdrawal agreement: see discussion here). This full renationalisation clearly limits the acquired rights of the millions of Union citizens who used their free movement rights to and from the UK before 2021. 

British courts, lawyers and legal academics

The references by British courts made an important contribution to the development of the rules on free movement of Union citizens. A quarter of all CJEU judgments in that field in 2008-2019 were given in answer to preliminary references by British judges. Especially, their questions concerning the right of permanent residence provide for in Directive 2004/38 (Dias, Alarape, Onuekwere and Lounes, discussed here) and on the admission of durable but unregistered partners of Union citizens (Rahman, Banger and S.M., discussed here) have produced some clarity and focus attention in several Member States on their rights. A bill implementing the last three judgments is currently pending in the German Bundestag. Almost half of the judgments of the Court of Justice concerning the rights of third-country national family members of EU citizens were given in answer to questions from British courts (V. Passalacqua, Legal mobilisation and the construction of EU migration law, Florence 2020, diss EUI, p. 8).  

Many of those questions originated in the minds of active UK lawyers, supported by their Immigration Law Practitioners’ Association (ILPA). Their activities also resulted in the provision on self-employed Turkish citizens in the EEC-Turkey association law were taken seriously (in Savas, Tum & Dari and Tural Oguz) by the Court and, subsequently in Member States. The AIRE Centre (Advice on Individual Rights in Europa) demonstrated how an NGO can stimulate test cases in Luxembourg. Since 1993, this London based organisation provided legal assistance and acted as party, intervenor or amicus curiae in more than hundred cases on human rights or migration before both European courts (for instance, the AIRE Centre acted as amicus curiae in the case on the border gate around Melilla, which resulted in ECtHR 13 February 2020, app. 8675/15 (N.D. and N.T. v. Spain), see point 100 and 160-163), and among those are ten cases before the Court of Justice on free movement or on Dublin since 2010.

Leading handbooks on EU migration law or on the EU Charter of Fundamental Rights written or edited by UK academics such as Cathryn Costello, Elspeth Guild and Steve Peers, will be gratefully used by lawyers and judges in the EU long after Brexit. The influence of almost five decades of membership of the same legal order cannot be brushed away, however gladly some politician would desire.

The greater the scope of the level playing field agreed in the future agreements between the EU and the UK, the greater the chance that EU law will remain a voluntary or compulsory subject at British law faculties, if only because people, businesses and institutions in the UK will continue to have to deal EU law rules. It will be for the lawyers in the remaining Member States to honour and profit from the contributions of their British colleagues, until the time is right for a new rapprochement.

Photo credit: Unlock