Will The Hague Really Look North? The ICC and EU Crimes Against Migrants

 

 

Adrian Gjoshi*

Photo credit: Justflix, via Wikimedia Commons

 

Europe and the International Criminal Court (ICC) stand at a pivotal moment. For the first time, EU migration policies and senior European officials are subject to direct international criminal scrutiny regarding the treatment of migrants in the Mediterranean. Following a six-year investigation, Front-Lex and international lawyers Omer Shatz and Juan Branco submitted a 700-page communication (communication II) to the ICC, alleging that 122 officials from the EU institutions and several Member States committed crimes against humanity against migrants on the Central Mediterranean route between 2014 and 2020. The submission is based on testimony from 77 witnesses and potential suspects, including several Heads of State, and provides a detailed mapping of agencies and their involvement. The comprehensive collaboration between lawyers, scholars, and students from a Parisian public university highlights the gravity of the allegations.  As a doctoral researcher and lawyer focused on migration-related crimes as potential crimes against humanity, this case is particularly resonant.

The communication builds on an earlier filing from 2019, which contended that these crimes are not incidental but result from EU migration policies that intentionally cause deaths at sea and delegate refoulement to third countries. This recent communication is both explicit and specific: it identifies alleged perpetrators; maps agencies involved and supplies extensive evidence. The communication alleges that more than 25,000 migrants drowned during 2014-2019, and over 150,000 were intercepted and forcibly transferred to Libya, where they were systematically subjected to arbitrary detention, torture, sexual violence, enslavement, and other inhumane treatment.

In its 23^rd report to the UN Security Council on April 28, 2022, the ICC Prosecutor acknowledged the suffering of migrants in Libya and that crimes committed against them may amount to crimes against humanity and war crimes under ICC jurisdiction. Similarly, on October 8, 2021, a member of the Independent Fact-Finding Mission on Libya stated at a media conference: “[…] it’s quite clear that the pullback policies and pushback policies at sea have led to huge violations of human rights on the part of migrants […] and as our report indicates this is one of the areas where we think that  crimes against humanity have been committed”(here). Yet, despite these acknowledgments, no concrete steps toward accountability have been taken.

High-ranking Individuals Allegedly Involved

One striking element of the filing is the public exposure of those accused. The online database of suspects created by the Front-lex names and profiles high-ranking officials, including former German Chancellor Angela Merkel, French President Emmanuel Macron, former EU foreign policy chief Federica Mogherini, and former European Council President Donald Tusk. They are accused of either directly committing or indirectly enabling “mass killing by drowning” and “refoulement by proxy.” Interestingly, all 122 suspects are color-coded to indicate their alleged degree of liability: yellow-green for the highest, violet for high, light purple for medium, and gray for low. Merkel and Mogherini are yellow-green, signaling the highest alleged liability, while Macron and Tusk are violet, indicating high liability. While these remain allegations, the communication pressures the ICC to examine power in the north, rather than continuing its focus exclusively on southern conflicts. To date, regardless of its duties to initiate investigations and investigate all relevant facts, the ICC Prosecutor has never brought a European national to trial.

EU Institutions and Border Policies

Europe’s border regime prioritises securitisation over humanitarian protection (here, here, and here). According to the communication at hand, the European Commission and the Council of the European Union have shifted control to third countries such as Libya and deprioritised search and rescue. Operation Sophia, initiated by the Council, exemplifies this strategy. Front-Lex notes that the Council was a forum “in which the perpetration of crimes against humanity in the Mediterranean and Libya were planned and carried out.”

Frontex, the European Border and Coast Guard Agency, has become central to these policies. Once merely a coordinating body, it now operates with expanded mandates and unprecedented funding. According to the communication, its operations have affected over 175,000 migrants in the past decade and demonstrates the EU’s prioritisation of enforcement over protection. Similarly, EMSA, the European Maritime Safety Agency, was established to ensure maritime safety and prevent pollution. In practice, it also appears to contribute to deterrence-focused migration policies. The communication argues that EMSA aids in the capture, detention, and endangerment of migrants, describing it as part of a “criminal enterprise of deterrence-based policies of mass killing by drowning.”

This coordinated approach on deterrence is also reflected in EU naval operations. Operation EUNAVFOR MED was launched in 2015 with the mission to disrupt human smuggling networks, rescue migrants, enforce the UN arms embargo on Libya, and train the Libyan Coast Guard. The name of the operation was changed to Operation Sophia, after a baby girl, Sophia, born aboard the German frigate FGS Schleswig-Holstein on August 22, 2015, after her Somali mother was rescued in the Mediterranean. The name became a symbolic gesture, highlighting the mission’s humanitarian image, even as its primary focus in practice remained on migration control and border security. Operation Sophia ended in 2020 and was replaced by Operation Irini, which primarily enforces the arms embargo, but according to the communication, continues to influence migration control. The communication also notes that both operations have prioritised deterrence over rescue, contributing to the interception, detention, and endangerment of migrants.

Accountability and the Limits of the ICC

International law limits immunity. The ICC’s Al-Bashir decision (2019) reaffirmed that even sitting heads of state cannot escape accountability. The International Law Commission’s (ILC) work since 2007 also shows a shift away from absolute immunity. Its 2025 report and recent state comments reveal growing acceptance that immunity should not shield international crimes. This shift opens the door for accountability.

The legal action outlined in the communication is compelling, not just for its legal novelty, but for the hope it offers to victims who have long been denied justice. Though groundbreaking, the legal action faces formidable legal and political hurdles that test the ICC’s limits. Legally, it is difficult to attribute criminal intent to political decisions. Politically, the ICC faces intense pressure from congressional threats, executive sanctions, and expanded measures against ICC staff by the US, as well as moves from Europe, such as Hungary’s 2025 withdrawal from the Rome Statute.

This probably explains why the ICC has historically struggled to act against powerful states (here and here). For two decades, its investigations focused almost entirely on African states (here, here, and here), while powerful Western states faced no comparable scrutiny. More recently, though, there are signs of progress: the ICC, after issuing an arrest warrant, arrested former Philippine President Rodrigo Duterte in March 2025 on charges of crimes against humanity linked to his “war on drugs.” This case, while still in the pre-trial stage, shows that the Court can move against high-profile figures and look beyond Africa. Duterte was no longer in office at the time, reminding us that leaders often need to be out of power before the Court can act.

Nevertheless, high-profile officials from influential countries remain effectively immune from prosecution. The issuance of arrest warrants for Vladimir Putin and Benjamin Netanyahu, with no arrests or court appearances to date, demonstrates the persistent challenges of enforcement in such cases. Consequently, the Court has not succeeded yet in holding leaders of powerful states accountable.

Going for the Heads of State

International justice often concentrates on the actors who implement unlawful policies, while those who design, authorize, and legitimise them remain insulated from effective scrutiny. Accountability becomes harder to pursue the more political authority a person holds. Unless responsibility is traced to the architects of these policies, the system that enables widespread harm remains intact.

Research suggests that focusing solely on individual responsibility can be incomplete.  For example, vulnerability theory shows that violence against migrants stems from policies, institutions, and hierarchies that normalise exclusion. International criminal law, with its focus on personal responsibility, overlooks this complexity. Mark Drumbl argues that individual prosecution cannot address the collective, structural nature of mass atrocities, and that ordinary criminal law assumptions cannot simply be applied to extraordinary crimes. At the same time, Kathryn Sikkink’s influential work on the “justice cascade” shows how trials of state officials can shape state behavior and help build a broader, lasting culture of accountability. This supports the view that, because systems are created and maintained by people, this legal action can deter future violations. The ICC, therefore, has an opportunity to confront not only individual liability but also the structures of power that enable such crimes.

Regardless of the outcome, the significance of this legal action lies in how it emerged and the challenge it poses. The collaboration between lawyers and students demonstrates the power of coordinated research and advocacy. More than a procedural step, it constitutes a convergence of practice and academia, testing whether the promise of international justice effectively extends to actors in both the Global North and the Global South. At minimum, it stands as a call for justice showing that law alone may not dismantle oppression, but it can expose it. And at times, exposing the truth is the first step toward accountability.

 

*Adrian Gjoshi is a doctoral researcher at the Institute for Human Rights at Åbo Akademi University and a lawyer. His research focuses on international criminal law and migration law.

 

The author would like to thank the editorial team and reviewers at Talking Rights for their helpful feedback.

The CJEU ruling in Changu: ‘If I’ve said it once, I’ve said it a thousand times: the Return Directive in conjunction with the Charter of Fundamental Rights does not oblige EU Member States to grant a right to remain to irregularly staying migrants’

 

 

Alan Desmond, University of Leicester

Kevin Fredy Hinterberger, Austrian Federal Chamber of Labour

Photo credit: Luxufluxo, via Wikimedia Commons

 

Introduction

The 2008 Return Directive sets out common standards and procedures for removal of irregularly staying third-country nationals (TCNs) by all EU Member States, except for Ireland and Denmark, and by the four Schengen states outside the EU, namely, Iceland, Liechtenstein, Norway and Switzerland. Since the Directive’s entry into force in January 2009, it has been the subject of an increasing number of important CJEU rulings that clarify the scope and substance of safeguards for TCNs facing removal, ranging from the right to be heard prior to adoption of a return decision, to the maximum period of detention allowed under the Directive.

While the self-evident focus of the Directive is on removal of irregularly staying migrants, Article 6(4) of the Directive provides that, instead of issuing or enforcing a return decision, a state may ‘at any moment decide to grant an autonomous residence permit or other authorisation offering a right to stay’ to an irregularly staying TCN. The recent ruling of the CJEU in Case C‑352/23 (Changu) maintains the Court’s stance that no provision of the Return Directive can be interpreted as requiring a member state to grant a residence permit to a TCN staying irregularly on its territory. Article 6(4) has no mandatory character and simply provides Member States with an option ‘to grant, for compassionate or humanitarian reasons, a right of residence, on the basis of their national law, and not EU law, to third-country nationals who are staying illegally on their territory’ (para 67). In this blogpost, however, we argue that Member States have to choose between the return procedure or regularisation. Both options for the Member States are equal in nature to the extent that they have the effect of ending the irregular stay (Hinterberger 2023, pp 98-99).

Background to Case C‑352/23 Changu

The applicant was a TCN who had been residing in Bulgaria since 1996. He had unsuccessfully lodged several applications for international protection and had been the subject of return decisions, the first dated 26 September 2005 and another dated 9 August 2017, which had never been enforced. The CJEU noted that there was no indication that this failure to enforce was due to obstacles to their execution or on health or humanitarian grounds (para 34). During his lengthy residence in Bulgaria the applicant had received different criminal convictions. He claimed that ‘because of the legal vacuum’ surrounding his stay in Bulgaria, ‘he had not had access to either health insurance or medical care’ (para 22).

The most recent rejection of the applicant’s request for international protection, in 2022, was upheld by the Administrative Court in Sofia. The Court in Sofia noted, however, that during the considerable length of his stay in Bulgaria, the applicant did not have any identity document and was often deprived of the necessary safeguards to ensure a dignified standard of living, in breach of Article 14 of the Return Directive. Article 14(1) obliges Member States, inter alia, to take into account certain principles in respect of persons whose return has been postponed, including provision of emergency health care and essential treatment of illness, and attention to special needs in the case of vulnerable persons. The Administrative Court also noted that the Bulgarian authorities had not complied with their obligation under Article 8 of the Return Directive to remove the applicant as soon as possible.

The Administrative Court referred six questions to the CJEU. In this blogpost we will focus on the core question concerning the Return Directive, namely, do Articles 1, 4 and 7 of the Charter of Fundamental Rights of the EU, read in conjunction with the Return Directive, oblige a Member State to grant a right to stay to a long-term irregularly-staying TCN on compelling humanitarian grounds? Hence, our argument in this blogpost draws on EU law combined with human rights law, rather than being solely based on EU law (Hinterberger 2023, pp 102-110).

 

Judgment

The CJEU delivered its judgment on 12 September 2024 without first receiving an Advocate General’s Opinion. In relation to the authorisation in Article 6(4) of the Return Directive, Member States may regularise the stay of an irregularly staying TCN ‘at any moment’. The Court found that this provision ‘does no more than permit Member States to grant, for compassionate or humanitarian reasons, a right of residence, on the basis of their national law, and not EU law’ to irregularly staying TCNs (para 67). This option to regularise is not transformed into an obligation by Articles 1 (dignity), 4 (prohibition of inhuman and degrading treatment) or 7 (right to respect for private and family life) of the EU Charter of Fundamental Rights, regardless of the length of residence of the TCN which the Court found in fact to be ‘irrelevant’ (para 68).

TCNs who have not been removed despite being the subject of a return decision are not, however, left in a situation of rightlessness; in particular, they are still within the scope of EU law. The CJEU noted that Article 14(1)(b) and (d) of the Return Directive requires Member States to ensure as far as possible that as long as removal is postponed, emergency health care and essential treatment of illness are provided, and the special needs of vulnerable persons are taken into account (para 73). Furthermore, the prohibition of inhuman or degrading treatment codified in Article 4 of the Charter obliges Member States to ensure that irregularly staying TCNs do not find themselves in situations prohibited by Article 4. This would arise where, for example, a person wholly dependent on State support endures ‘extreme material poverty that does not allow him to meet his most basic needs, such as, inter alia, food, personal hygiene and a place to live, and that undermines his physical or mental health or puts him in a state of degradation incompatible with human dignity’ (para 75).

Emerging divergence with the European Court of Human Rights?

The Court’s finding in Changu, while consistent with its earlier case law, arguably diverges with rulings delivered by the European Court of Human Rights (ECtHR) in response to complaints that expulsion of irregularly staying migrants would violate the Article 8 ECHR right to respect for private and family life, which is also enshrined in Article 7 of the Charter. This divergence is evident in two areas. Firstly, the CJEU in Changu found that the length of residence of the applicant in the host state was ‘irrelevant’ to the question whether the Charter may impose an obligation to regularise individuals falling within the scope of the Return Directive. The ECtHR, however, attaches significance to the length of an immigrant’s stay in her host state where she seeks to resist expulsion on the basis it would violate her right to family or private life (Desmond 2021). While this is just one factor amongst many taken into consideration by the ECtHR in its assessment of the proportionality of an expulsion measure, length of residence has been invested with significance in a number of ECtHR rulings finding against states’ decisions to expel irregularly staying migrants, including in the Grand Chamber decision in Jeunesse (2014). Indeed, ‘the extent of the ties in the contracting state’, a proxy for time spent in a state, is one of the staple factors taken into consideration in the ECtHR’s Article 8 expulsion cases involving irregularly staying migrants (Bast et al 2022, pp 198-203).

Secondly, there is no evidence that the Court in Changu drew any negative inferences from the failure to remove the applicant from Bulgaria, despite the imposition of a return decision in 2005, and a second in 2017. This contrasts with the approach of the ECtHR for which the failure of state authorities to act with the requisite promptness has helped to tip the balance in favour of irregularly staying migrants seeking to resist expulsion (Desmond 2021, pp 426-428). Thus, for example, in Nunez (2011) the Court rebuked Norway for allowing almost four years to elapse, after discovering in 2001 the unlawful nature of Mirtha Nunez’s stay, before ordering her expulsion. Similarly, in Kaplan (2014) the Court noted that after Kamran Kaplan’s conviction in December 1999 for aggravated assault the authorities took no specific measures to deport him for about six years. This occasioned the Court to observe, as it had in Nunez, that the expulsion order did not in any real way meet ‘the interests of swiftness and efficiency of immigration control that was the intended purpose of such administrative measures’ (para 95). In discussing the applicant’s 16-year stay in the Netherlands in Jeunesse (2014), the Grand Chamber noted that tolerance of her presence ‘for such a lengthy period of time, during which for a large part it was open to the authorities to remove her, in effect enabled the applicant to establish and develop strong family, social and cultural ties in the Netherlands’ (para 116). The passage of so much time in the Netherlands, and the substantial family and private life network facilitated thereby, played a key role in the Grand Chamber’s finding, by 14 votes to three, that expulsion would violate Article 8.

When read in light of this ECtHR line of case law, the finding of the CJEU in Changu that the applicant’s 26-year residence in Bulgaria was ‘irrelevant’ to the question of a right to regularisation is striking.

 

Could the Court have reached a different conclusion in Changu?

The finding of the CJEU in Changu is consistent with the CJEU’s earlier rulings concerning removal under the Return Directive including Mahdi (2014), Abdida (2014) and X (2022). There are, however, at least two complementary arguments that the Court should read the Return Directive as imposing an obligation to regularise irregularly staying TCNs who are not removed, firstly an effectiveness-based argument (Desmond 2020; Desmond 2022, p 147; Hinterberger 2023, pp 102-110) and, secondly, a human rights-based argument (Desmond 2015, pp 75-83; Bast et al 2022, pp 201-203).

The aim of the Return Directive to reduce the presence of irregularly staying migrants in the EU is inferable from the text of the Directive itself. Article 6(1) Return Directive requires Member States to issue a return decision to any irregularly staying TCN, a provision that has been interpreted by the CJEU to mean that Member States must ‘explicitly make provision in their national law for the obligation to leave the national territory in cases of illegal stay’. The aim is also evident in the view of the Commission that the Directive ensures that ‘a person is either legally present in the EU or is issued with a return decision’ (Commission Communication 2011, p 9). More recently, the Commission has referred to the obligation on Member States to take all necessary measures to ensure return (Commission Recommendation 2017, p 24). Both the Commission and the CJEU have repeatedly referred to the need to ensure the effectiveness of the EU’s return policy generally and of the Return Directive in particular. Both are demonstrably lacking in effectiveness, as evidenced by the fact that the majority of irregularly staying migrants are not issued with return decisions and the majority of those who do receive return decisions do not leave the EU (European Parliamentary Research Service 2019; Lutz 2018).

Regularisation, unconditionally open to Member States under Article 6(4), would allow TCNs who are not or cannot be deported to remain in the EU on a legal basis, thereby reducing the ongoing chasm between the number of return decisions issued and the number effected. Embracing regularisation would transform current return policy from one that is grossly ineffective to one which would have a greater likelihood of achieving the aim of lowering the number of irregularly staying migrants in the EU (Desmond 2020, p 6; Hinterberger 2023, p 357).

The human rights-based argument for regularisation is anchored in the belief that human rights considerations require a TCN to be allowed to remain lawfully in the EU instead of being expelled. These considerations include any family life a TCN may have in the host state, with which deportation would inevitably interfere. Similarly, the principle of the best interests of the child might mean that a child migrant should not be expelled to a country where her quality of life would be drastically lower than in the expelling state or that a TCN parent should not be expelled where expulsion would result in a separation of parent and child or removal of a child so as to accompany the deportee parent. Such considerations are, in fact, expressly acknowledged in the Directive and should, as set out in the Preamble, be primary considerations of Member States when implementing the Directive. 

The CJEU has explicitly held in cases such as Mahdi that there is no obligation on Member States under Article 6(4) to regularise TCNs for whom there is no longer a reasonable prospect of removal. Nonetheless, the explicit reference to human rights considerations in the Directive, the CJEU’s increasing reference to the EU Charter for Fundamental Rights and human dignity in its case law on the Directive and the wide concern with ensuring the effectiveness of the Directive and EU return policy all combine to produce a compelling argument for a regularisation obligation under the Return Directive in conjunction with the Charter of Fundamental Rights.

Giving Back Control: British travel to the EU after Brexit

 

Professor Steve Peers, University of Essex*

*linked to research on the upcoming 5^th edition of EU Justice and Home Affairs Law

Photo credit: John Fielding, via Wikimedia Commons

 

One of the most Blindingly Obvious Things in the history of Blindingly Obvious Things is that one consequence of the UK leaving the EU is that travel to and stay in the EU by British citizens is now different – the obvious corollary of travel to and stay in the UK by EU citizens being different, as the Leave campaign specifically demanded.

In light of current disputes about delays crossing the border, what exactly does that mean in practice? The following blog post addresses the issues in Q and A format.

What were the previous rules?

UK citizens going to the rest of the EU, and EU citizens coming from the rest of the EU, were covered by EU free movement law – see Articles 4 and 5 of the EU citizens’ free movement Directive. This allowed travel across the border in both directions on the basis of showing an identity card or passport (although non-EU family members, while benefiting from free movement law generally, had to get a visa in some circumstances). 

This overlapped with the Schengen rules on external borders – dating back originally to the Schengen Convention of 1990 agreed between several Member States, applied from 1995, integrated into EU law in 1999 when the Treaty of Amsterdam came into force, and currently set out in the Schengen Borders Code, 2016 version. (Amendments to the Code have since been adopted or proposed).

The Schengen rules do not, as some may think, limit themselves to abolishing internal border controls between Schengen States. Because the abolition of such controls means that whoever enters (say) Italy from outside Schengen could travel to Austria without being checked at the border between those countries, there are common rules on external border controls, too. (There are also common rules on short-stay visas, criminal law and police cooperation, and a joint database, the Schengen Information System)

For EU citizens crossing the external borders (UK/France, for instance), the Borders Code requires a simplified check on their identity and the validity of the document (see Article 8(2)), including a check on security databases (see the 2017 amendment to the code, which requires further checks: the application of this delayed some travellers a few summers back).

The UK’s departure from the EU not only took it out of the scope of EU free movement law. Brexit also necessarily means that the UK is now treated as a non-EU country under the Schengen rules – because that is the status that the UK wanted to have. More on what that means in concrete terms in a moment.

Which countries apply these rules?

Free movement law applies not only to EU Member States, but also to Norway, Iceland, and Liechtenstein, which have signed up to those rules as part of the European Economic Area treaty, and to Switzerland, which signed up to similar (not currently identical) rules as part of a package of treaties with the EU.

The scope of the Schengen rules is more complicated. First of all, the immigration law part of the Schengen rules does not apply to Ireland (apart from rules on carrier sanctions and penalisation of smuggling), although Ireland has signed up to the criminal law parts of Schengen. Ireland has opted out of the immigration law part of the Schengen rules due to the Common Travel Area with the UK, as provided for in a Protocol attached to the EU Treaties. The Protocol still applies despite Brexit, and there is no sign that the Irish government is interested in fully joining Schengen, probably because that would mean border checks on the land border with Northern Ireland (unless Northern Ireland also joined Schengen, but it is hard to imagine any British government agreeing to that).

Among the other EU Member States, Schengen rules do not yet fully apply to Romania, Bulgaria, Croatia and Cyprus – although the external borders parts do apply already (see the accession treaty with Croatia, for example). Extending Schengen fully needs unanimous agreement of the existing Schengen States, which has been slow in coming (although a decision on extension to Croatia could be adopted soon). And Denmark applies Schengen rules, but in a legally different way from other EU Member States.

As for non-EU countries, Norway, Iceland, Liechtenstein and Switzerland have agreed treaties associating themselves to the Schengen rules. As with free movement law, this association is reciprocal – ie Norway or Switzerland must also let EU citizens visit and stay on the basis of free movement law, and drop border controls with Schengen States, not only the other way around.

Finally, the UK and the EU are negotiating a form of association of Gibraltar to Schengen. It remains to be seen whether those talks will be successful, and if so what will be agreed.

Is stamping British passports a fetish of Anglophobic, Brexit-hating, surrender-loving, French freaks?

No.

Stamping the passports of non-nationals is a normal part of immigration control worldwide. For France, and other Schengen countries, it’s an obligation in the Schengen Borders Code, Article 11:

1.   The travel documents of third-country nationals shall be systematically stamped on entry and exit. In particular an entry or exit stamp shall be affixed to:

(a)	the documents, bearing a valid visa, enabling third-country nationals to cross the border;
(b)	the documents enabling third-country nationals to whom a visa is issued at the border by a Member State to cross the border;
(c)	the documents enabling third-country nationals not subject to a visa requirement to cross the border.

 

(There are exceptions, but they are fairly limited). The UK having chosen to become a non-EU country without free movement, British citizens are necessarily covered by the stamping obligations after the end of the Brexit transition period. The code makes clear (see Article 8(3)) what the point of the stamp is – to enable checks as to whether the passport holder has not overstayed the permitted period of stay.

Some Brexit supporters had argued for a continuing close relationship with the EU post-Brexit, in which case stamping of documents would not have applied (see Article 2(6) of the Code, which defines ‘third-country nationals’ in the Code as not applying to citizens of countries with a free movement agreement with the EU). But those Brexit supporters who wanted to end free movement, and who argued explicitly against treating EU citizens coming to the UK better than non-EU citizens coming to the UK, won that argument. So it is hypocritical for them to complain about the obvious reciprocal consequence: that the EU is now treating UK citizens coming to the EU the same as other non-EU citizens coming there.

What are the other main features of the Schengen borders rules?

Leaving aside the bits on abolishing internal border checks, which are subject to many possible exceptions (Articles 22-35), the main points, besides stamping of documents, are:

-          the code is ‘without prejudice’ to free movement law, as well as the ‘rights of refugees and persons requesting international protection, in particular as regards non-refoulement’

-          Member States must comply with fundamental rights when they implement it

-          external borders must be crossed at official places and times, with penalties if this is breached (again ‘without prejudice’ to ‘international protection obligations’; note that Article 31 of the Refugee Convention provides for refugees crossing borders without authorisation, subject to certain conditions)

-          entry conditions: 90 out of 180 days stay in the Schengen area as a whole; justifying the purpose of the intended stay and having sufficient subsistence; a visa if EU law requires it; not being the subject of an alert in the Schengen Information System; not being a threat to public policy etc

-          details of the border checks for EU and non-EU citizens (which are more stringent)

-          separate lanes for EU and non-EU citizens

-          border surveillance to try to stop unauthorised entry

-          refusal of entry if conditions are not met; there is a right to appeal a refusal

-          general rules on cooperation between Member States

There are limited exceptions to some of these rules. There’s also a rule on sufficient resources for border checks (Article 15), which could be relevant to France/Dover:

Member States shall deploy appropriate staff and resources in sufficient numbers to carry out border control at the external borders, in accordance with Articles 7 to 14, in such a way as to ensure an efficient, high and uniform level of control at their external borders.

Does Brexit mean that UK citizens can’t go to the EU courts?

No. Access to the EU courts is not limited to EU citizens. There are many cases brought by non-EU citizens about the application of EU immigration and asylum law that go to the CJEU. Indeed, I’ve been slogging through them for the latest edition of my book. You can find a compilation of the case law on the 2016 version of the Borders code here.

As with other EU law, the main way that an argument about EU immigration and asylum law gets to the EU courts is by disputing the application of that law in the national courts (ie, challenging a German border guard’s refusal of entry in a German court). Any national court or tribunal may then send questions about the interpretation or validity of that EU law to the CJEU.

It’s also possible to sue the EU institutions or agencies (but not the Member States) directly in the EU General Court. Unlike (say) competition law or trade mark law, this has limited relevance to immigration or asylum law, because it’s mainly national authorities that implement this field of EU law on the ground. There are cases pending against Frontex, the EU borders agency – but these are about its alleged role in pushback of migrants at sea, not ordinary border checks.

Does the EU have immigration databases?

Hell, yes. The EU is the poster child of the border security/industrial complex. In particular it currently has the Schengen Information System (updated in 2018, but the update is not applied yet). The SIS contains not only security alerts (such as being subject to a European Arrest Warrant) which apply to and are checked for everyone, but also immigration alerts, which apply only to non-EU citizens, now including Brits (but not only Brits!). These are issued following entry bans for breaches of immigration law or criminal law.

The 2018 changes will link this system to the issue of entry bans under the Returns Directive, which regulates the expulsion, detention etc of non-EU citizens who are not authorised to stay, now including Brits (but not only Brits!!).

In the next year or two the EU is likely to roll out its entry-exit system (which will keep a record of non-EU citizens coming in and out of the EU) and its travel authorisation system, ETIAS (like the US ESTA, a requirement for non-visa non-EU nationals to get an advance authorisation to travel – similar to the idea of a visa but not technically a visa; it will be simpler and cheaper to get and apply for longer).  Both will apply to Brits, but are not being rolled out – despite absurd suggestions to the contrary – solely for Brits(!!!), or because of Brexit. The entry-exit system will in principle replace stamping of documents at the borders by e-gates, but whether that speeds things up or slows things down remains to be seen.

There’s also the Visa Information System (revised in 2021, but the revised system is also not yet applicable). It was originally for applicants for Schengen visas (ie short-term visas), so doesn’t apply to Brits, but the revised version will apply to Brits (but not only to Brits!!!!), as it will cover long-term visa and residence permit holders.

The Eurodac system keeps a record of asylum seekers and irregular border crossers. It is – you guessed it! – being revised and extended, so will also (among other things) apply to those on the territory without authorisation, which could include post-Brexit Brits (but not only Brits!!!!!).

These databases apply to Schengen States only, except Eurodac applies to all Member States and Schengen associates. Ireland participates in SIS criminal law alerts (but not immigration alerts), and the Member States not fully in Schengen have some access to these databases too.

Tl;dr: as with the Hulk, Brits won’t like the EU immigration control system when it’s angry. 

Could the UK reach a special deal with EU on border control?

The EU’s border control law has special rules for European micro-states, and local border traffic with neighbouring Eastern European states, so it’s not impossible. You can see an example of simplified border checks, in spite of underlying immigration control, at the Canada/US border, for instance. But the EU has never before agreed exemptions from its core border control laws with a large non-EU country.

And would the UK – at least under its outgoing and upcoming Prime Minister – be interested anyway? Neither side suggested any such thing during the Brexit talks, and the UK has moved away from the sort of simplification the EU side would ask for, as it is no longer accepting ID cards for EU citizens at the border (there’s an exception for those covered by the withdrawal agreement). It’s very hard to believe that the EU would agree such a thing unilaterally, if at all – and it’s not only Leavers who fantasise that nevertheless it would or should. And then they wake up.

What about Brits living in the EU?

Those Brits in the EU before the end of the Brexit transition period may – like EU citizens in the UK at that point – be covered by the withdrawal agreement, which I annotated here. 

Otherwise Brits in the EU are in the same position as other non-EU citizens living in the EU. If they have a long-term visa or residence permit, they can travel to other Member States for 90/180 days (see Article 21 of the Schengen Convention). They will not be subject to the entry-exit law or the travel authorisation law. They can be subject to immigration alerts in the Schengen Information System, subject to complex rules about consultation between Member States (amended in 2018). When crossing external borders, they are not subject to all the conditions of entry. If they are the family member of an EU citizen who has moved between Member States, they are covered by EU free movement law: the immigration law equivalent of marrying a billionaire. But complicated things could happen if that family relationship breaks down before they obtain their own permanent residence permit.

What about the rest of EU immigration and asylum law?

That’s enough for today. But I summarised the rest of EU immigration and asylum law when the EU Commission tabled its proposed Immigration and Asylum Pact in September 2020 – so see that blog post, with further links. The main development since then is that the EU has adopted a new version of its Blue Card law on admission of highly-skilled non-EU workers.

At least tell me if Brits can apply for asylum in the EU?

Brits are no longer subject to the quasi-ban on EU citizens applying for asylum in other Member States – because they are no longer EU citizens.  But if you believe that, as things stand, Brits are likely to be considered to meet the definition of ‘refugee’ in the Refugee Convention (and EU asylum law) – having a well-founded fear of persecution on grounds of race, religion, nationality, political opinion, or particular social group – then imagine me shaking my head in Godwin’s Law. 

Justice and Home Affairs in the future UK/EU relationship: analysis of the negotiation positions

Professor Steve Peers, University of Essex

The EU has now adopted its negotiation mandate for future relationship talks with the UK (discussed here). The UK has now done the same. Lots of commentators have looked in detail at the two sides’ approach to the future relationship on economic issues: this blog post aims to do the same on justice and home affairs issues (immigration, asylum, civil cooperation, judicial and police cooperation).

I’ve reproduced the full text of both sides’ positions side-by-side, thematically, with detailed commentary – plus links to relevant treaties and legislation.

Warning: this blog post criticises both sides where warranted. Supporters of Brexit probably already have my photo pinned to a dartboard; cheerleaders for every position the EU takes might now wish to do the same. In particular, the latter group of people really need to stop claiming that the UK must accept the CJEU’s jurisdiction for any treaty in this field, given that the EU has never insisted on any such thing for any other non-EU country.

In particular, the EU negotiation position for these talks is that in the event of disputes between the parties relating to EU law, the CJEU has to be the final arbiter. The EU has taken that position because the CJEU requires it – but we can find ways to avoid the situations in which the CJEU requires it, in particular by not referring to EU law as such, and/or avoiding a dispute settlement system which includes arbitrators that might be called on to interpret it. Indeed, the EU and other non-EU countries have found ways to do just that many times before, in all the areas covered by this blog post. If the EU doesn’t trust the UK, it will have the possibility to terminate or suspend the treaty if its concerns are confirmed in practice.

In some ways, this is an update of a previous blog post I wrote on the possibility of a security treaty between the two sides post-Brexit – although obviously events have moved on since then, which I have fully taken account of. Another background source is the House of Lords committee report on a future UK/EU security treaty (which I was a special adviser to).

Note that the withdrawal agreement already provides for the details of winding up the UK’s participation in these issues at the end of the transition period. In the event of future treaties on these issues, arguably the agreement’s Joint Committee can amend these provisions to suit (see Article 164(5)(d), giving it the power to amend the agreement ‘to address situations unforeseen when this Agreement was signed’).

Since there is a significant possibility that the UK/EU negotiations on economic relations will be about as successful as the recent Cats movie, a lot turns on whether there will be a separate treaty on this issue. This is an explicit demand by the UK side, although the EU position is vague. We can only speculate at this point whether a collapse of the economic talks would anyway scupper other negotiations on separate treaties for political reasons.

To ease comparison, the EU position is in italics throughout. The UK position is underlined. My commentary is in ordinary text. I have marked each point by a traffic light system to indicate my assessment of the likelihood of agreement as things stands: Green is more likely than not; Amber is possible, but complicated; Red is unlikely.

In an alternate universe, there’s an alternative Professor Peers, who has the technical ability to do more exciting things with a text; but we are all stuck in this universe.  

Civil cooperation

59. In areas not covered by existing international family law instruments and taking into account the United Kingdom's intention to accede to the 2007 Hague Maintenance Convention, the Parties should explore options for enhanced judicial cooperation in matrimonial, parental responsibility and other related matters.

64. The UK proposes continuing to work together with the EU in the area of civil judicial cooperation through multilateral precedents set by the Hague Conference on Private International Law and through the UK’s accession as an independent contracting party to the Lugano Convention 2007.

Amber. The Hague Conference is an international process to draft treaties (among other things) facilitating civil judicial cooperation worldwide. The EU as such is a member alongside its Member States, and has signed up to some of the relevant treaties, including the 2007 Hague Maintenance Convention. (the UK’s ratification is planned for the end of the transition period: see these declarations).  The EU has gone further than the Hague Conference on some civil law issues, by adopting legislation going into more detail on civil jurisdiction (which country’s court has jurisdiction over a cross-border dispute), conflict of law (which country’s law applies in a cross-border dispute; this does not necessarily match the court with jurisdiction), and recognition of judgments as between countries (ie how an American judgment might be enforced in Japan). The Lugano Convention is a treaty copying the text of general EU law on civil jurisdiction and recognition of judgments as it stood in 2007 (it was amended in 2012) and extending it to Norway, Iceland, and Switzerland.

The EU refers specifically to family law, apparently contemplating specific arrangements, while the UK refers generally to the Hague Conference and more precisely to the Lugano Convention. There’s a specific process for signing up to that Convention, in Articles 70 and 72. For a country not part of the EU and EFTA, as the UK will be, it needs the unanimous consent of the existing Contracting Parties. The EFTA States have already supported the UK’s accession; it remains to be seen what view the EU will take. The existing parties ‘shall endeavour to consent’ to the request for accession within a year after they agree to it. As part of the accession request, the applicant country must, among other things, supply ‘information on the appointment and independence of judges’.

Note that although the Lugano Convention copies an EU law text, it does not give the CJEU jurisdiction over the treaty as regards non-EU signatories. Rather Protocol 2 to the Convention says that the parties shall give ‘due account’ to each other’s court’s judgments, including the judgments of the CJEU. There is a system for discussing divergences in interpretation of the Convention, but this does not include any binding dispute settlement – therefore no arbitrators who might be called upon to ask the CJEU how to interpret EU law. Note that the UK’s intention to sign up to the Convention indicates that this does not violate the UK’s ‘red line’ objections to CJEU jurisdiction, presumably because it does not involve jurisdiction for the CJEU or provide for arbitrators to refer questions to the CJEU in the event of a dispute. Equally we can deduce it doesn’t violate EU ‘red line’ objections either – given that the EU signed up to the Convention already.

There’s also no ‘dynamic alignment’, ie no obligation to keep up with changes in EU law. Indeed, the 2012 amendment of EU law did not affect the Convention, which still reflects the EU law on this issue adopted in 2001.

In order to move things forward, the UK would have to apply as soon as possible to sign up to the Lugano Convention. If the EU wants to continue cooperation on family law it should table a text soon. Copying the existing EU law texts into a separate treaty, following the format of the Lugano Convention, would be the easiest way forward. As explained above, the Lugano Convention does not breach the UK’s red lines. 

Immigration and asylum

145. The envisaged partnership should envisage cooperation to tackle irregular migration of nationals other than those of the Parties, including its drivers and consequences, whilst recognising both the need to protect the most vulnerable and the United Kingdom’s future status of a non-Schengen third country that does not provide for the free movement of persons. This cooperation should cover: a) cooperation with Europol to combat organised immigration crime in line with arrangements for the cooperation with third countries set out in the relevant Union legislation; b) a dialogue on shared objectives and on cooperation, including in third countries and international fora, to tackle irregular migration upstream.

54. The UK has made a specific commitment to seek to negotiate a reciprocal agreement for family reunion of unaccompanied children seeking asylum in either the EU or the UK, with specified family members in the UK or the EU, where this is in the child’s best interests.

55. Beyond this, the UK is open to an agreement regulating asylum and migrant returns between the UK and the EU, or alternatively with individual Member States, underpinned by data sharing, to help counter illegal migration and deter misuse of our asylum systems.

Red. The EU seems to be interested in operational cooperation in this area, while the UK wants to negotiate on unaccompanied children seeking asylum, and is also open to a broader arrangement on ‘asylum and migrant returns’ either with the whole EU or individual Member States. The CJEU has not clarified whether this is an issue within EU exclusive competence (ie Member States can’t sign treaties with non-EU countries) or not. The European Parliament also supported the idea of a treaty in this field (para 61 of its resolution on the future relationship), but it is not the negotiator.

In order to move this issue forward, the UK should table a text in this area as soon as possible. If the EU is not interested, the UK should adapt that text into a model treaty with individual Member States and table it to them. NGOs interested in asylum issues should do their best to encourage interest on the EU side.

It is sometimes suggested that the EU should only sign treaties on asylum responsibility with non-EU countries which have signed up to Schengen. But as discussed below, the ‘signed up to Schengen’ rule is not consistently applied by the EU in these negotiations. And frankly, it is not defensible to prioritise an arbitrary and incoherent ‘rule’ above the family unity of vulnerable unaccompanied children seeking asylum.

Note that the EU’s treaties in this field do not require the non-EU country to accept CJEU jurisdiction. For instance the treaty with Norway and Iceland refers to an exchange of case law, political dispute settlement, and the possible termination of the treaty.

56. Mobility arrangements, including on visa-free travel for short-term stays, in the envisaged partnership should be based on non-discrimination between the Union Member States and full reciprocity.

57. The envisaged partnership should aim at setting out conditions for entry and stay for purposes such as research, study, training and youth exchanges.

58. The envisaged partnership should address social security coordination.

60. Any provisions should be without prejudice to the Common Travel Area (CTA) arrangements as they apply between the United Kingdom and Ireland, as referred to in Article 38(2) of the Withdrawal Agreement and in Article 3 of the Protocol on Ireland/Northern Ireland.

17. Social security coordination can remove barriers and support mobility of labour between countries. Arrangements that provide healthcare cover for tourists, short-term business visitors and service providers, that allow workers to rely on contributions made in two or more countries for their state pension access, including uprating principles, and that prevent dual concurrent social security contribution liabilities, could be good for business and support trade. These arrangements could benefit UK nationals and EU citizens travelling or moving between the UK and the EU in future.

18. The UK is ready to work to establish practical, reciprocal provisions on social security coordination. Any agreement should be similar in kind to agreements the UK already has with countries outside the EU and respect the UK’s autonomy to set its own social security rules. These arrangements should support mobility by easing the process for those working across borders, including underpinning the reciprocal arrangements on the temporary entry and stay for business purposes (‘Mode 4’ provisions).

Green (social security, visas, CTA); Red (students etc). The two sides both seem interested in negotiating a social security treaty. The UK does not reply to the EU’s visa point, but the relevance of that is limited because the EU has already waived short-term visitor visa requirements for UK citizens unilaterally, as discussed here. The UK also does not reply to the EU’s points about researchers and students, although both sides have their own legislation on admission of these groups of people already (the EU law is discussed here). Nor does the UK refer to the Common Travel Area, but the withdrawal agreement refers to it already.

Police and criminal law: General

115. With a view to the Union’s security and the safety of its citizens, the Parties should establish a broad, comprehensive and balanced security partnership. This partnership will take into account geographic proximity and evolving threats, including serious international crime, organised crime, terrorism, cyber-attacks, disinformation campaigns, hybrid-threats, the erosion of the rules-based international order and the resurgence of state-based threats.

116. The envisaged partnership should reaffirm the Parties’ commitment to promoting global security, prosperity and effective multilateralism, underpinned by their shared principles, values and interests. The security partnership should comprise law enforcement and judicial cooperation in criminal matters, foreign policy, security and defence, as well as thematic cooperation in areas of common interest.

27. The safety and security of our citizens is the Government’s top priority. The UK already has world leading law enforcement capabilities. At the end of the transition period, we will fully recover our sovereign control over our borders and immigration system, which will further enhance our security capabilities.

28. Against this background, the UK stands ready to discuss an agreement on law enforcement and judicial cooperation in criminal matters, to the extent that this is in both parties’ interests. It should include: arrangements that support data exchange for law enforcement purposes; operational cooperation between law enforcement authorities; and judicial cooperation in criminal matters.

29. The agreement should facilitate police and judicial cooperation between the UK and EU Member States; equip operational partners on both sides with capabilities that help protect the public and bring criminals to justice; and promote the security of all our citizens.

Both sides support motherhood. And puppies. Lots of puppies. Other than the international criminal puppies.

Police and criminal law: Red Lines

117. The security partnership should provide for close law enforcement and judicial cooperation in relation to the prevention, investigation, detection and prosecution of criminal offences, taking into account the United Kingdom’s future status of a non-Schengen third country that does not provide for the free movement of persons. The security partnership should ensure reciprocity, preserve the autonomy of the Union’s decision-making and the integrity of its legal order and take account of the fact that a third country cannot enjoy the same rights and benefits as a Member State.

30. This should be a separate agreement with its own appropriate and proportionate governance mechanism. The agreement must not constrain the autonomy of the UK's legal system in any way. It should not provide any role for the CJEU in resolving UK-EU disputes, which is consistent with the EU’s approach to cooperation with third countries on law enforcement and judicial cooperation in criminal matters, including between the EU and neighbouring non-EU countries on tools such as the Second Generation Schengen Information System (SIS II) and Prüm.

Both sides emphasising the importance of the ‘autonomy’ of their own legal order here – but emphasising different examples of what their ‘red line’ is in that context. For the UK, it’s no ‘role for the CJEU in resolving UK-EU disputes’. (The UK doesn’t – and couldn’t seriously – object to a role for the CJEU in interpreting the treaty on the EU side; see, for instance, the CJEU judgment on the EU/US extradition treaty, discussed here).  The UK government correctly points out that in practice the EU has consistently agreed treaties with non-EU countries on these issues without requiring jurisdiction for the CJEU to settle disputes. For the treaties it refers to, see for instance the Schengen association agreement with Norway and Iceland (review of the case law; political dispute settlement; termination if dispute is not settled), and the Prüm agreement with the same countries (review of the case law; political dispute settlement).

Having said that, the EU has not made any specific demand on the CJEU issue – besides the general position that if arbitrators are called upon to settle a dispute involving interpretation of EU law, they must ask the CJEU. But the EU makes no mention of how it thinks dispute settlement should work in this specific area. There is no reason why arbitrators must always be involved in settling disputes about interpretation of a treaty, and the EU has never insisted on it before in this field.

The EU’s specific ‘red line’ is ‘taking into account the United Kingdom’s future status of a non-Schengen third country that does not provide for the free movement of persons.’ That correctly describes the UK’s future status; but as we will see, the EU applies this test inconsistently, objecting to the UK continuing to participate in the second-generation Schengen Information System (SIS II), but supporting the UK continuing to participate in some other EU measures only extended to non-EU Schengen associates, or not extended to non-EU countries at all.

Police and criminal law: human rights and data protection

118. The envisaged partnership should be underpinned by commitments to respect fundamental rights including adequate protection of personal data, which is a necessary condition for the envisaged cooperation. In this context, the envisaged partnership should provide for automatic termination of the law enforcement cooperation and judicial cooperation in criminal matters if the United Kingdom were to denounce the European Convention of Human Rights (ECHR). It should also provide for automatic suspension if the United Kingdom were to abrogate domestic law giving effect to the ECHR, thus making it impossible for individuals to invoke the rights under the ECHR before the United Kingdom’s courts. The level of ambition of the law enforcement and judicial cooperation envisaged in the security partnership will be dependent on the level of protection of personal data ensured in the United Kingdom. The Commission will work toward an adequacy decision to facilitate such cooperation, if applicable conditions are met. The envisaged partnership should provide for suspension of the law enforcement and judicial cooperation set out in the security partnership, if the adequacy decision is repealed or suspended by the Commission or declared invalid by the Court of Justice of the European Union (CJEU). The security partnership should also provide for judicial guarantees for a fair trial, including procedural rights, e.g. effective access to a lawyer. It should also lay down appropriate grounds for refusal of a request for cooperation, including where such request concerns a person who has been finally convicted or acquitted for the same facts in a Member State or the United Kingdom.

31. Cooperation will be underpinned by the importance attached by the UK and the EU to safeguarding human rights, the rule of law and high standards of data protection. The agreement should not specify how the UK or the EU Member States should protect and enforce human rights and the rule of law within their own autonomous legal systems.

32. The agreement should include a clause that allows either party to suspend or terminate some or all of the agreement. This should enable either the UK or the EU to decide to suspend – in whole or in part – the agreement where it is in the interests of the UK or the EU to do so.

33. In line with precedents for EU third country agreements on law enforcement and judicial cooperation in criminal matters, the agreement should not specify the reasons for invoking any suspension or termination mechanism.

Amber. Both sides express their concern about data protection and human rights, but diverge on what that might mean in practice – although that divergence is not so broad that compromise is impossible.  The EU wants to suspend or terminate the treaty for reasons related to human rights or data protection, while the UK accepts the possibility that the treaty could be suspended or terminated, but does not want the treaty to specify the reasons why it might be suspended or terminated. The obvious compromise is that the treaty provides for its suspension or termination if either party decides, without mentioning the grounds, while the EU provides in its own law that it will automatically trigger these clauses for specified human rights or data protection reasons. (This approach could apply equally to divergences from case law: the UK could hardly object to the EU terminating a treaty on those grounds, having accepted that either side should be able to terminate the treaty on grounds they may choose).

The UK refrains from responding to the EU’s implied concern about human rights protection in the UK, but a neutral observer concerned with this issue might well call for a plague on both their houses: the disturbing attacks on judicial independence in Poland being matched by British politicians and commentators who slaver to follow this example. Once the British establishment fantasised that it was Greece to America’s Rome; now it aspires to be Mini-Me to Poland’s Dr. Evil.  

Data exchange

119. The envisaged partnership should establish arrangements for timely, effective, efficient and reciprocal exchanges between Passenger Information Units of Passenger Name Record (PNR) data and of the results of processing such data stored in respective national PNR processing systems. It should also provide a basis for transfers of PNR data by air carriers to the United Kingdom for the flights between the United Kingdom and a Member State. Such arrangements should comply with the relevant requirements, including those set out in the Opinion 1/15 of the CJEU.

40. The agreement should provide for reciprocal transfers of PNR data to protect the public from serious crime and terrorism.

41. The transfer of Passenger Name Record data from airlines to the UK or EU Member State competent authorities is an important law enforcement capability. It enables law enforcement and security agencies to identify known and otherwise unknown individuals involved in terrorism related activity and serious crime, and track criminal networks from their patterns of travel.

42. The agreement should be based on, and in some respects go beyond, precedents for PNR Agreements between the EU and third countries – most recently, the mandate for the EU-Japan Agreement.

Green. Both sides agree to negotiate on passenger name data, with no big conflict between their positions – although it’s not clear what the UK seeks by ‘going beyond’ the usual EU treaties. On this issue, the EU has a record of agreeing treaties with non-EU countries (including non-Schengen countries), as the UK points out. There’s no CJEU jurisdiction required for the non-EU countries: see the EU/US PNR treaty, for instance (political dispute settlement).

The EU side refers to a 2017 CJEU judgment (discussed here), which criticised the EU/Canada PNR agreement on data protection grounds, but did not rule out the EU agreeing such treaties if there were stronger safeguards. Note that a further CJEU challenge is pending, on the EU’s own PNR legislation; this might have implications for the EU’s external treaties on this issue too. The EU cannot simply negotiate away these safeguards, as the CJEU rulings are based on EU primary law (the EU Charter of Fundamental Rights).

120. The envisaged partnership should provide for arrangements between the Parties ensuring reciprocal access to data available at the national level on DNA and fingerprints of suspected and convicted individuals as well as vehicle registration data (Prüm).

38. The agreement should provide for the fast and effective exchange of national DNA, fingerprint and vehicle registration data between the UK and individual EU Member States to aid law enforcement agencies in investigating crime and terrorism.

39. The agreement should provide similar capabilities to those currently delivered through the Prüm system, drawing on the precedent for such cooperation between the EU, Norway and Iceland as well as between the EU and Switzerland and Liechtenstein. These precedents include a political dispute resolution mechanism with no jurisdiction in those third countries for the CJEU.

Green. Both sides agree to negotiate on this particular form of exchange of data, with no conflict between their positions. The UK correctly points out that the EU has already signed agreements with Schengen associates linking them to the EU legislation on this exchange of information, with no CJEU jurisdiction for the non-EU countries and political dispute settlement.

121. Without prejudice to the exchange of law enforcement information through Interpol, Europol, bilateral and international agreements, the envisaged partnership should provide for alternatives for simplified, efficient and effective exchanges of existing information and intelligence between the United Kingdom and Member States law enforcement authorities, in so far as is technically and legally possible, and considered necessary and in the Union’s interest. This would include information on wanted and missing persons and objects.

43. The agreement should provide a mechanism for the UK and EU Member States to share and act on real-time data on persons and objects of interest including wanted persons and missing persons. This capability is currently provided by the Second Generation Schengen Information System II (SIS II), making alerts accessible to officers on the border as well as to front-line police officers in the UK.

44. SIS II is used by EU and non-EU Schengen members (Switzerland, Norway, Iceland and Liechtenstein). The UK will continue to use SIS II until the end of 2020.

45. The agreement should provide capabilities similar to those delivered by SIS II, recognising the arrangements established between the EU and non-EU Schengen countries (Switzerland, Norway, Iceland and Liechtenstein). The EU’s agreements with these non-EU Schengen countries include a political dispute resolution mechanism with no jurisdiction in those third countries for the CJEU.

Red. The UK seeks something ‘similar’ to SIS II, while the EU rules out the UK’s participation in SIS II as such. This is not explicit in the EU position, but is set out unambiguously in the Q and As published by the Commission. Currently the UK participates in the criminal and police information exchange in SIS II, not the immigration aspects of the database, as discussed here. There’s another law known informally as the ‘Swedish Framework Decision’, but it concerns exchange of information in specific cases, not a database. So while both sides are willing to negotiate something, it’s not clear what that might be.

122. The envisaged partnership should provide for cooperation between the United Kingdom and Europol and Eurojust in line with arrangements for the cooperation with third countries set out in relevant Union legislation.

46. The agreement should provide for cooperation between the UK and Europol to facilitate multilateral cooperation to tackle serious and organised crime and terrorism. The UK is not seeking membership of Europol. Europol already works closely with a number of non-EU countries, including the US, through dedicated third country arrangements.

47. The agreement could go beyond existing precedents given the scale and nature of cooperation between the UK and Europol. For example, the UK was the highest contributor of data to Europol for strategic, thematic and operational analysis in 2018.

49. The agreement should provide for cooperation between the UK and Eurojust. Eurojust is an EU agency which brings together prosecutors, magistrates and law enforcement officers to assist national authorities in investigating and prosecuting serious cross-border criminal cases. The UK is not seeking membership of Eurojust.

50. Eurojust already works closely with a number of non-EU countries, including the US, through dedicated third country arrangements. The agreement should follow these precedents to enable ongoing cooperation between the UK and Eurojust.

Green. Both sides are broadly in agreement here, and both correctly point out that there is a framework for Europol and Eurojust to cooperate with non-EU countries (already being applied, as the UK points out).  The UK’s goal of going beyond precedent as regards Europol might not be reciprocated by the EU side. Cooperation with non-EU countries does not go as far as being a Member State. Contrary to the popular belief that ‘cooperation with Europol means CJEU jurisdiction yada yada yada’, there’s no such requirement for non-EU states: see the Europol agreements with the USA, for instance.

Criminal justice cooperation

123. The envisaged partnership should establish effective arrangements based on streamlined procedures subject to judicial control and time limits enabling the United Kingdom and Union Member States to surrender suspected and convicted persons efficiently and expeditiously, with the possibilities to waive the requirement of double criminality for certain offences, and to determine the applicability of these arrangements for political offences and to own nationals, including the possibility for the Union to declare, on behalf of any of its Member States, that nationals will not be surrendered, as well as to allow for the possibility to ask for additional guarantees in particular cases.

51. The UK is not seeking to participate in the European Arrest Warrant as part of the future relationship. The agreement should instead provide for fast-track extradition arrangements, based on the EU’s Surrender Agreement with Norway and Iceland which came into force in 2019, but with appropriate further safeguards for individuals beyond those in the European Arrest Warrant.

Amber. Both sides agree on a fast-track extradition system in place of the European Arrest Warrant, which has only ever been applied between EU countries. The UK explicitly refers to the precedent with Norway and Iceland, which is very similar to the EAW with certain exceptions (from the ‘red line’ perspective, there’s no CJEU jurisdiction for the non-EU countries, exchange of case law and political dispute settlement). The only other EU extradition treaty is with the USA. The UK refers to ‘further safeguards’, while the EU refers to ‘additional guarantees’: similar in principle, but the devil will be in the details.

As for those details, the EU position that some Member States might refuse to extradite their own citizens already applies in the withdrawal agreement transition period and in the EU/Norway/Iceland agreement. It’s derived from long-standing national constitutional rules, not a vengeful tantrum by the EU: Barnier did not travel back in time to tell Member States’ constitution drafters and constitutional court judges to punish the UK for leaving the EU decades in the future.

I pointed out that this would happen before the referendum, and was told this was ‘Project Fear’; nobody has had the humility or integrity to apologise for their ignorance on this issue. It’s almost as if not everybody knew what they were voting for after all. And the sight of people who wanted the UK to become a non-EU country becoming upset because the UK is now being treated as a non-EU country is…unappealing.

The EU refers to the possibility of waiving ‘dual criminality’ – the usual rule of extradition law that an act or omission must be a crime in both the State requesting extradition and the State being requested to hand over a fugitive for extradition to apply. The European Arrest Warrant waives that rule as regards 32 crimes; the EU/Norway/Iceland treaty makes the waiver only optional. As a whole, the EU/Norway/Iceland treaty copies most of the EAW legislation, with several other exceptions.

124. To ensure effective and efficient practical cooperation between law enforcement and judicial authorities in criminal matters, the envisaged partnership should facilitate and supplement, where necessary, the application of relevant Council of Europe conventions, including by imposing time limits and providing for standard forms. It should also cover necessary supplementary forms of mutual legal assistance and arrangements appropriate for the United Kingdom future status, including on joint investigation teams and the latest technological advancements, with a view to delivering capabilities that, in so far as is technically and legally possible and considered necessary and in the Union’s interest, approximate those enabled by the Union instruments.

52. The agreement should provide for arrangements delivering fast and effective mutual legal assistance in criminal matters including asset freezing and confiscation. These arrangements should build and improve on those provided by relevant Council of Europe Conventions including the 1959 Council of Europe Convention on Mutual Legal Assistance and its Protocols, for example by providing for streamlined and time limited processes.

Amber. Both sides are willing to supplement the Council of Europe treaties on mutual assistance (the rules on transferring evidence cross-border). The EU has previously negotiated mutual assistance treaties with Norway and Iceland, the USA and Japan. Internal EU law (the European Investigation Order, discussed here), has aimed to replace the Council of Europe measures with a fast-track system too. The details of what is contemplated are not clear, however. The UK refers explicitly to freezing and confiscation (the subject of separate EU and Council of Europe measures), but the EU does not; the reverse is true for joint investigation teams.

125. Supplementing and facilitating the application of the European Convention on Mutual Legal Assistance in Criminal Matters of 20 April 1959 and its Additional Protocols, the envisaged partnership should put in place arrangements on exchange of information on criminal records appropriate to the United Kingdom’s future status with the view of delivering capabilities that, in so far as technically and legally possible and considered necessary and in the Union’s interest, approximate those enabled by the Union instrument.

35. The agreement should provide for the fast and effective exchange of criminal records data between the UK and individual EU Member States, recognising that this is an important tool for investigations, prosecutions and sentencing, as well as for wider community safety.

36. To that end, the agreement should provide for capabilities similar to those provided by the European Criminal Records Information System (ECRIS). ECRIS is a secure, automated, electronic system providing for exchange of criminal records information held on countries’ own national databases within specific deadlines.

37. These arrangements should draw on precedents for similar networks of national databases for law enforcement purposes between the EU and third countries (see Prüm below).

Green. Both sides agree in principle to exchange of criminal records on a similar basis to existing EU law (ECRIS was initially set up on the basis of two EU laws: a Framework Decision and a Decision. These laws were amended and replaced by a Regulation and Directive). The details remain to be worked out, however. Note that the EU has not previously agreed to such measures with any non-EU country – even the Schengen associates.

Other issues

126. The envisaged partnership should include commitments to support international efforts to prevent and fight against money laundering and terrorist financing, particularly through compliance with Financial Action Task Force (FATF) standards. The provisions in the envisaged partnership should go beyond the FATF standards on beneficial ownership information, among others by providing for the existence of public registers for beneficial ownership information for companies and semi-public registers of beneficial ownership information for trusts and other legal arrangements.

53. The agreement should establish effective and reciprocal arrangements to transfer prisoners between the UK and EU Member States, enabling prisoners to be moved closer to home and be rehabilitated in the community to which they will be released. These should build and improve on arrangements provided by the 1983 Council of Europe Convention on the Transfer of Sentenced Persons and its Protocols, and could include time limited processes.

Red. The UK wants to go beyond the Council of Europe rules on the transfer of prisoners, although it does not explicitly refer to the EU law on this issue. There is no matching interest in negotiating this from the EU. On the other hand, the UK does not match the EU interest in negotiating on money laundering (again, there’s no explicit reference to EU law on money laundering) – although in this case, the EU position is almost word for word what the UK agreed with the EU in the political declaration on the future relationship (para 89, discussed here). It’s fair to say, as noted above, that the UK refers to freezing and confiscation of assets, which are part of this issue – but the banking law aspects are part of it too.

Photo credit: Wikicommons

Barnard & Peers: chapter 25, chapter 26, chapter 27

JHA4: all of it