The Calais crisis: which Member State is responsible?

Steve Peers

Several thousand migrants are living in poor conditions near Calais, many apparently intent on making it to the UK. Their attempts to find passage via the Eurotunnel are severely delaying travel on both sides of the border. Which country is responsible for them: the UK or France?

At the outset, we should note that this is in a way a clash between two different types of movement within the EU. On the one hand, we have the free movement that the EU specifically tries to encourage: the free movement of goods in the lorries, persons in the trains, and transport services in either context. On the other hand, we have what the EU calls ‘secondary’ movements of (potential) asylum-seekers, which it specifically tries to discourage. EU internal market law is adopted to facilitate the first type of movement, while EU asylum law is harmonised to reduce the incentive for the second type.

Of course, the migrants don’t actually want to shut EU free movement down, since that would defeat their whole purpose. They merely want the lorries to slow down long enough to stow away on board, then continue on their journey – in effect bringing the two types of movement together. It’s the government attempts to prevent this that leads to near-gridlock.

But which of those governments is responsible? Let’s examine the issue first from the migrants’ perspective, and then from the free movement perspective. (While some consider the word ‘migrant’ offensive, I will continue to use it. In my view, it simply refers to a category of people, like teachers or nurses. It would make sense to refer to them as ‘asylum-seekers’ or ‘refugees’ only if it were clearly the case that almost all of them had applied for asylum or qualify as refugees; the available information doesn’t indicate this clearly enough. The word ‘migrant’ doesn’t deny their humanity; it simply explains their situation.)

Immigration and asylum law

Some of the migrants have applied for asylum in France, and so their position is governed by EU asylum law. This includes the Dublin Regulation, which determines which Member State is responsible for their application. That may not be France, but rather the Member State which they first entered – if France can prove that they entered there. If France cannot prove that another Member State is responsible, then it must assume responsibility. The UK would only be responsible for their applications if they have close family members in the UK, living there as refugees or asylum-seekers.

In the meantime, while the asylum-seekers are on French territory, the EU’s Directive on reception conditions for asylum-seekers applies. The EU Court of Justice has specifically ruled, in a case involving France, that this Directive applies to the State where asylum-seekers are currently located, even if the Dublin rules say those asylum-seekers should be transferred to another Member State. It only applies to that other Member State once the asylum-seekers are actually transferred there. This ruling obviously applies a fortiori to asylum-seekers who simply want to travel to another Member State and apply there instead. The whole point of the Dublin Regulation is to deny asylum-seekers exactly that choice. Although the Regulation fails epically in practice to stop asylum-seekers trying to choose the State they would like to apply in, the Directive still applies to ensure minimum living standards for asylum-seekers in the State they are present in.

What does that mean in practice? The Directive requires the Member State where the asylum seekers are present to ensure basic standards as regards welfare and accommodation, among other things. It appears from press reports that these standards are not respected as regards the migrants near Calais.

Furthermore, the latest EU Directiveon asylum procedures, which applied from last week, sets deadlines to deal with asylum claims. That part of the Directive doesn’t apply until 2018, but it could be argued in the meantime that the principle of effectiveness of EU law (which the CJEU has frequently applied in immigration law cases) requires asylum claims to be dealt with efficiently, not just ignored.  As for the substance of asylum law, some press reports suggest that France gives asylum to Eritreans much less often than the UK (and much of the rest of the EU). This may be due to a flawed application of the EU’s Qualification Directive. If this is not being fixed in the French courts by an asylum-seeker’s appeal or a judicial review by NGOs, then the Commission should identify the specific error in interpretation of the law and bring infringement proceedings against France.

But not all of those migrants have applied for asylum. For those people, since it seems unlikely that any of them are legal migrants, this must mean that they are irregular migrants. Their position in France is therefore governed by the EU’s Returns Directive, which specifies that the Member States must issue irregular migrants with a return order and try to enforce their expulsion to a country of origin or transit as soon as possible. The EU Court recently ruled that Member States could not simply issue irregular migrants with a fine and make no effort to remove them. It must equally follow that Member States cannot turn a blind eye to their existence, when (as in the Calais case) a large number of them are openly staying on Member States’ territory.

The Returns Directive does not create an absolute obligation to remove irregular migrants. First of all, a Member State can choose to regularise their position at any time. Secondly, if they apply for asylum, EU asylum law applies, until the end of the asylum process, when they are either recognised as needing protection or their application fails its final appeal. In the latter case, the Returns Directive then applies again. Thirdly, it may prove impossible in practice to remove them to their State of origin or transit, because there is not enough proof of where they come from.  In that case, they remain in a kind of limbo, unless the State chooses to regularise them. Irregular migrants are entitled to emergency health care and essential treatment of illness during their stay. As far as we can tell from press reports, it does not appear that the French authorities are making any active effort to return the irregular migrants in Calais to their countries of origin or transit pursuant to the Directive.  

Free movement law

The CJEU has ruled, in a case involving France, that Member States have a responsibility to prevent free movement of goods being disrupted by private individuals. While States have a margin of discretion exactly how to deal with that private behaviour, it is not unlimited. In that case, farmers’ groups had been vandalising lorries full of other Member States’ produce for years on a regular basis, and many of the perpetrators were known to the police. France was therefore liable for doing nothing very effective to stop this. It was compensating the victims, but this was not enough.

On the other hand, in the case of Schmidberger, Austria was not liable for allowing a disruption to trade by private protesters who briefly blocked a transit route. According to the CJEU, the protesters’ right to demonstrate overrode the free movement of goods, given that the disruption didn’t last very long.

What about industrial action? This is also a separate source of the current restrictions on movement between the UK and France. On this point, the CJEU has been quite critical of trade union action that restricts free movement: in the controversial cases of Viking Line and Laval, it ruled that while EU law recognized trade unions’ right to strike and take other collective action, these rights were easily overruled by EU free movement rules. But those cases concerned the freedom of establishment and free movement of services; the current strikes in France affect the free movement of goods. An EU Regulationadopted after the earlier French case states that while States have an obligation to deal with private disruptions to the movement of goods, this is without prejudice to the right to strike.

Applying these cases to the current problems at the UK/France border, it’s not clear whether the disruptions caused by strikes are an unjustifiable restriction on free movement.  The strikes seem only to concern pay and conditions, whereas in Laval and Viking Line, while the disputes were also indirectly about pay and conditions, they were mainly directed at shutting down free movement due to perceived ‘social dumping’.

What about the disruptions linked to the migrants’ attempts to travel to the UK?  While EU law does recognize a right to asylum, it’s possible to apply for that right in any Member State, and so it is not necessary to travel to the UK to that end. The number of migrants would surely be reduced if France applied its obligations to: process asylum applications; decide on Eritrean claims correctly; and remove irregular migrants who had not applied for asylum. France must also extend basic standards of welfare and housing to asylum-seekers, whether that acts as a 'pull' factor or not. 

Is the UK liable in any way? The UK does exercise border controls on French territory, pursuant to a treatybetween the two countries on ‘juxtaposed controls’, agreed in the context of the Channel Tunnel. But the UK’s obligations under that treaty do not extend to admitting asylum-seekers or other irregular migrants who want to use the tunnel to travel to the UK. More broadly, the UK’s border checks in France don’t turn any part of France into British territory, just as the reciprocal French border checks in the UK don’t turn any bits of Kent French, or transfer St. Pancras station to the Paris metro system.

So France is responsible for the impact on free movement, due to its separate breaches of EU immigration and asylum law. This shouldn’t be seen as a selfish or parochial conclusion; after all, it’s not really radical to say that States are generally responsible for what happens on their territory. That’s the normal rule of public international law, and it’s linked to the basic principle of State sovereignty. The EU rules in this case reflect that principle.

Having said that, allocating responsibility does not as such solve the problem. It would be open to the French government to denounce the treaty on juxtaposed controls, with a negative impact on the UK. So it makes sense for the UK government to offer a contribution to solve the problem, even if it is not obliged to do so. The government has already accepted this principle, paying for the construction of a security fence. And it would equally make sense to make a contribution as regards immigration issues, for instance the costs of removal or basic support, linked to a requirement to move to other parts of France to receive that support.

Barnard & Peers: chapter 26

Photo credit: BBC  

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UKIP borders and asylum policy: You cannot be serious

Steve Peers

There’s no doubt that the United Kingdom Independence Party (UKIP) has been gaining increased support in recent years, not least because of its policies on immigration – which are linked intrinsically with its intention to withdraw from the European Union.

Undoubtedly leaving the EU would leave the UK free to regulate fully the movement of people coming from the remaining EU. But what would that actually mean in practice? We have some indications today from the party’s immigration spokesman.

Border controls

UKIP would have a UK-only lane at border crossings, with EU citizens having to wait with all other nationalities in the slow lane. This would violate current EU law, but of course UKIP want the UK to leave the EU. So of course this plan is perfectly feasible in principle, and indeed it’s the logical consequence of leaving the EU.

But UKIP don’t mention the further consequence: if EU citizens have to wait in the slow lane when entering the UK, UK citizens will likewise have to wait in the slow lane when entering the remaining EU countries. Indeed, this is just one of the many complications for British citizens that would result from leaving the EU, which I detailed in a post on this blog earlier this year. So any time UK citizens might save being fast-tracked as they return to the country would be lost every time they visit the EU.

Perhaps UKIP would tell us that we shouldn’t visit Europe so much, but instead have our holidays in the UK. This reminds me of a UKIP activist I met a few years back, who was personally boycotting all European food and drink. If she hasn’t actually starved to death by now, she’s surely leading a pretty miserable life.

Asylum

UKIP’s immigration spokesman is quoted as saying:

"UKIP will support the measures to abolish the provisions of the Dublin Treaty, that says that we cannot choose to identify the country an illegal migrant comes from if they do not have any identifying documents. We will send you back."

First of all, the Dublin Regulation isn’t a treaty, it’s a Regulation. But if the UK left the EU, as UKIP propose, we wouldn’t be subject to the Dublin rules as such, unless we indeed signed a treaty with the EU to that effect. The EU has been willing to sign such treaties with non-member states: Norway, Iceland, Switzerland and Liechtenstein. (It’s also signed such a treaty with one of its members – Denmark – for complicated legal reasons).

Would the EU as a whole be willing to sign such a treaty with the UK? We can be nearly certain that they would not. The EU has only been willing to sign such treaties with Norway et al because those states not only have free movement of people with the EU, but also are associated with the Schengen rules abolishing border controls. It’s not politically realistic to abolish those controls without having rules on allocation of asylum seekers. Indeed, the first appearance of the Dublin rules was as part of the original Schengen Convention of 1990.

If the UK left the EU, it would not be part of the Schengen system. Indeed the UK doesn’t participate in Schengen already, and there’s no realistic prospect that it will ever do so. And since UKIP loathes immigration from the EU so much, there would not be free movement either. While the EU might nevertheless conceivably be willing to extend the Dublin rules to neighbouring countries (like Serbia, for instance) if that would reduce the number of asylum-seekers reaching the EU, a Dublin treaty with the EU would have exactly the opposite effect.

Could the UK sign side deals with individual EU countries? For instance, could it send asylum-seekers to France or Greece on the basis of bilateral agreements? No. It’s clear by analogy from the case law of the CJEU (such as its very recent judgment on broadcasting rights) that the EU as a whole has exclusive competence over the allocation of asylum-seekers as between EU Member States and third countries. In fact, in light of that recent judgment, the EU might well have exclusive external competence over all asylum matters.  

The EU can delegate its exclusive competence back to Member States. But if the UK leaves the EU, it’s fair to predict that hell would freeze over before the Commission proposed to allow Member States to sign such a deal, or (if it did) that the EP and Council would approve the idea, or that Member States would want to make use of such powers as regards the UK.  

In those circumstances, it would not be possible to send asylum-seekers to any EU Member States. And since the immigration status of airplane passengers from third countries is closely controlled by carrier sanctions, the main route for asylum-seekers to get to the UK is indeed via land though the EU. Although perhaps UKIP believe that since climate change isn’t happening, it might soon be viable to travel by land from Africa to the UK.

The consequence of this is obvious: there would be more asylum-seekers coming to the UK, not fewer, if the UK left the EU. While refugee advocates would welcome this outcome, it’s clearly the opposite of what UKIP wants to achieve. But perhaps we cannot expect too much policy coherence from a party whose supporters believe that Jesus is on their side to deliver them from EU tyranny.

[Photo(shop) credit: Jamie East]

Barnard & Peers: chapter 3

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Unaccompanied minor asylum-seekers: a step in the right direction?

Steve Peers

The EU’s Dublin system on the allocation of responsibility for asylum-seekers, which sets out rules determining which single Member State has responsibility for considering an asylum-seeker’s application, has long been decried as unworkable and an infringement of human rights. These broader arguments will be addressed in a future post on this blog, but for the moment it’s a good time to have a look at yesterday’s proposal from the Commission to ameliorate the Dublin system’s effects a little.

The proposal only covers applications by unaccompanied minors, who make up a small proportion of the total number of asylum-seekers. Nevertheless, they constitute a particularly vulnerable group. Currently, the Dublin III Regulation states that the Member State responsible for an unaccompanied minor asylum-seeker is the Member State where a family member or sibling of the minor is legally present, if that is in the best interests of the child. A ‘family member’ is defined as a spouse, parent or guardian (if the minor is unmarried), or child of the asylum-seeker, if the family already existed in the country of origin. If the minor is married but his or her spouse is not in the EU, then the Member State where his or parents are legally present is responsible.

If there are no such persons on the territory of a Member State, then the Member State where a ‘relative’ of the unaccompanied minor is legally present is responsible, if that relative can take care of him or her.  A ‘relative’ is defined as an aunt, uncle or grandparent.

If there are family members, siblings or relatives in multiple Member States, then the responsible Member State is decided on the basis of the best interests of the child.

Finally, if no such persons can be found, the ‘default’ rule is that the Member State responsible is the State where the unaccompanied minor has applied for asylum, if that is in his or her best interests. But the legislation does not expressly address how this rule applies if the minor applies for asylum in more than one Member State.

When the Dublin III Regulation was negotiated in 2012, these provisions were hotly disputed between the European Parliament and the Council. The two institutions finally agreed to leave the default rule untouched, since there was a pending case on the interpretation of that rule before the CJEU. However, they adopted a joint declaration calling on the Commission to consider making a proposal to amend the legislation as regards that issue once the Court had delivered its ruling.

The Court gave its ruling in that case (MA) in June 2013, and the Commission has now presented its proposal. According to the Court, where an unaccompanied minor has already made an application for asylum in one Member State, and then proceeds to make an application in another one, the default rule should be interpreted to mean that the Member State where the most recent application was made is responsible for the application.

In the Court’s view, this interpretation was necessary first of all for literal reasons, as the legislation does not refer to the first Member State where the application was made. Secondly, unaccompanied minors were vulnerable persons, so the procedure to apply the Dublin rules should be as short as possible. Finally, this interpretation was most consistent with the ‘best interest of the child’, as required by Article 24 of the EU Charter of Fundamental Rights.

Yesterday’s proposal would first of all entrench the Court’s interpretation as an express rule in the Dublin Regulation, covering all cases where the asylum-seeker had applied in multiple Member States. This is the interpretation that the EP favoured, and had tried to fight for as an express rule back in 2012.

It would also set out a new rule which would apply when the unaccompanied minor has made an asylum application in one Member State, and is present in a second Member State, but has notmade an application in the second Member State.  In that case, the second Member State should ‘inform’ the child of the possibility of applying for asylum there, and give him or her an ‘effective opportunity’ to apply.

If the minor takes up the opportunity to apply for asylum in the second Member State, that Member State becomes responsible for the application. If he or she does not apply, then the Member State where he or she has most recently applied is responsible.

The new proposal also specifies that the Member States concerned shall cooperate to establish what the best interests of the child are. Finally, it sets out an express rule on Member States informing each other of their decisions; the CJEU had already established such an obligation in the MA judgment.

Comments

In principle this proposal is very welcome, given that it exempts unaccompanied minors from the full rigour of the Dublin rules. While this might reduce the pressure to reform those rules, there is little prospect of a fundamental change in those rules (at least at the EU legislature's behest; the courts may be a different matter). So at least one category of vulnerable persons can escape from them. 

More particularly, the proposal both confirms the ‘applicant’s choice’ rule for unaccompanied minors without family members first established by last year’s judgment, and also extends that rule to more situations. However, there are certain limits on the proposal, and flaws which could be improved.

First of all, it should be noted that the proposal does not cover the position of those whose application for asylum has already been rejected in another Member State. But the Court of Justice referred to that issue in its MA judgment, noting that in such cases the second Member State has the option to treat the application as inadmissible in accordance with the EU’s asylum procedures rules. Presumably that rule would continue to apply here.

On this point, however, in principle there should not be many fast-track refusals of applications by unaccompanied minors, given the convoluted exceptions from some of the fast-track rules set out in the second-phase Directive on asylum procedures.

Secondly, the new amendment would not clarify what is meant by the obligation to ‘inform’ the child about applying for asylum and give him or her an ‘effective opportunity’ to apply for asylum. Although there is a rule in the Regulation already spelling out an obligation to inform asylum-seekers about Dublin rules, it only applies once the person concerned has applied for asylum. So it doesn’t cover the position of those who haven’t applied yet. There should be express rules on this issue, in order to ensure that the child is made fully aware of the choice of making a fresh application.

As for the effective opportunity to apply for asylum, there is a (rather vague) rule on this issue in the second-phase Directive on asylum procedures. But it isn’t clear if the proposed new rules in the Dublin Regulation would confer less, more or the same degree of protection than the rules in the Directive.

Thirdly, the prospect of Member States deciding between themselves on what is in the best interests of the child is problematic. Surely, in accordance with the EU Charter, the child has a right to express a view on this issue, especially since EU asylum law guarantees him or her the right to a representative for this very purpose? So the legislation should guarantee that any decision which Member States take which is purportedly in the best interests of the child should be open to challenge, following a prior right to a hearing and the disclosure of relevant information on this subject.

Next, the proposal may mean that more Member States in practice embark on the controversial practice of trying to determine the age of teenagers who claim to be 'minors' (the EU legislation defines this as being under 18). The asylum procedures Directive has rules on this issue, but there are no rules on what happens if the person turns 18 during the procedure.  

Finally, it must be noted that the rules will only be relevant for those minors who have the effective possibility of moving between Member States. They will need some knowledge of which Member States they might wish to apply to, and how to get there, as well as the money to arrange for their travel. Furthermore, they will obviously not be able to move to another Member State in order to apply there if they are in detention. On this point, it should be noted that the revised reception conditions Directive provides that unaccompanied minors can only be detained in ‘exceptional circumstances’.

Given the freedom of unaccompanied minors to make applications in another Member State, it cannot be argued that this possibility justifies their detention. In fact, the grounds for detention in the reception conditions Directive do not provide for such a case. Similarly, while the Dublin rules do allow detention if there is a ‘significant risk of absconding’, it is difficult to see how that ground for detention can apply to unaccompanied minors in light of these rules.  

Barnard & Peers: chapter 9, chapter 26 

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Candidates for Commission President: comparing and assessing their immigration policy proposals

Steve Peers

Football fans have long enjoyed playing the game of Fantasy Football, in which they imagine what might happen if a particular grouping of players actually formed a team. Equally, for the time being, aficionados of European Union politics can play Fantasy Commission President, in which they imagine what might happen if any of the particular candidates for Commission President nominated by the European political party groupings got the job.

Of course, as discussed earlier on this blog, it remains to be seen whether, after the elections finish on May 25^th, the European Council would be willing to nominate the candidate of the political party which gets the most seats for President, and what the European Parliament (which has the power to ‘elect’ the President, based on the European Council’s nomination) would do if it doesn’t. For the time being, though, this attempt at a new process for selecting the Commission President has resulted in the candidates announcing some of their policies, which allows us to compare those policies.

To that end, this post first summarises the candidates’ positions on immigration policy, and then compares and assesses those policies. It should be recalled that some European parties have not named a candidate for Commission President (the ECR group including the British Conservatives, and the EFD group including UKIP), so therefore for those parties there are no candidate’s policies to assess here.

Martin Schultz

Yesterday, Martin Schultz, the candidate of the Party of European Socialists, announced his immigration policy. The main points of the policy are: saving the lives of migrants; developing a common policy; positive migration management; applying the principle of loyalty and solidarity; developing a rule-based system; and setting out a long-term vision.

In particular, he believes that countries like Malta, as well as some third countries, bear a disproportionate share of the burden as regards migration towards the European Union, and so ‘a European response is needed’. This involves: coordinating national actions; communication with North African partners about surveillance; exempting ship-masters from prosecution; respect for fundamental rights and non-refoulement; and a strong Commission position as regards evaluation and weaknesses at external borders.

As regards asylum, recognition rates differ widely, and the Dublin system for allocation of asylum-seekers is confusing courts. To address this, he wants to increase resettlement (ie bringing refugees directly from states near their country of origin), take the ‘relocation’ of the persons involved within the EU ‘to the next level’, test the joint processing of applications, increase the integration of refugees and improve the capacity of the European Asylum Support Office, to ‘monitor the quality and consistency of asylum decisions’. He will also keep the idea of temporary protection, a special system to deal with a mass influx of persons fleeing persecution, on the table. The EU should develop relationships with third countries focussed upon encouraging reforms, so as to reduce the desire to migrate in the first place.

As for migration, he wants a well-organised system, mentioning in particular the importance of skills, migrant integration, and attracting university students and researchers.  He also wants to use visa policy to encourage tourism.

Jean-Claude Juncker

The candidate nominated by the European People’s Party has set out a five-pointplan on migration. First, he wants to implement the Common European Asylum System legislation without delay, in order to reduce the wide gap in recognition rates between Member States. Second, he wants to increase the powers of the European Asylum Support Office, as regards risk assessments and tailored training for national administrations. Third, he wants the EU to help address the root causes of migration, in the countries of origin. Fourth, to reduce irregular migration and address demographic problems, he wants to address legal migration, in particular by re-examining the ‘Blue Card’ rules on highly-skilled migration. Finally, he wants to secure the EU’s borders, by boosting Frontex (the EU’s border agency) and applying EU rules on punishing traffickers of persons.

Alexis Tsipras

The candidate of the European Left party set out some immigration policy positions in his declaration of acceptance of his candidacy. He also wants to support countries of origin, to rescue migrants on the open sea, to create reception centres, and to rethink the EU framework, in particular changing the Dublin rules on allocation of responsibility for asylum-seekers.

Ska Keller and Jose Bove

There is no immigration policy position paper as such for the Green Party candidates for Commission President (or at least, none that can easily be found on the Internet). However, an indication of their policy can be found in Ska Keller’s YouTube video. She also criticises the EU’s Dublin system because of its impact on human rights and burden-sharing for small countries, and calls for fairer asylum procedures, the issue of humanitarian visas to would-be refugees and legal access for economic migrants.

Guy Verhofstadt

Finally, the Liberal party candidate only briefly mentions migration policy in his Plan for Europe (note: this is a difficult document to download, and it mostly consists of diagrams). The single paragraph on this issue mentions the importance of burden-sharing and managing legal migration.

Comparing the policies

Interestingly, the Socialist and EPP positions have much in common. Both support cooperation with countries of origin, suggest a plan for legal migration, and wish to reduce the gaps in refugee recognition rates by strengthening the European Asylum Support Office. But there are nuances between them: Juncker wants the office to be more involved in risk assessments and tailored training, while Schultz wants it to monitor Member States’ implementation of EU law. However, Juncker does refer to the importance of implementation of EU asylum law generally. Schultz has further policies relating to sharing asylum burdens, as regards resettlement, relocation, temporary protection and joint processing. It might be deduced that neither candidate is calling for amending the Dublin rules on allocation of responsibility for asylum-seekers.

As for legal migration, Juncker is more specific, calling for review of the specific rules on admission of highly-skilled workers, while Schultz sets out a longer list of objectives but without offering as much detail.

Juncker lays greater stress on controlling external borders, in particular as regards strengthening Frontex and prosecuting traffickers, while Schultz stresses exempting ship captains from prosecution, Commission supervision and respect for fundamental rights.

The Green and European Left candidates’ positions have in common a demand for an overhaul of the EU’s Dublin system. For its part, the Green candidate specifically mentions the issue of humanitarian visas as a possible solution to the problem of safe access to the European Union, and (like Martin Schultz) suggests that there should be more avenues for legal migration, without setting out further details.

Unfortunately, the Verhofstadt policy on immigration is too brief to compare it meaningfully with the others, or to assess it.

Assessing the policies

There is a clear divide between the two bigger parties’ candidates’ implicit positions on the Dublin system of allocating asylum-seekers, and the explicit attack on that system by the Green and Left candidates. While there is certainly much to be said for scrapping the Dublin system entirely or profoundly reforming it, this solution is probably not politically realistic as there is a significant majority of Member States against it, and there would probably not be a majority in favour in the European Parliament either.

So if we are stuck with the Dublin system, what can be done to alleviate the problems arising from its operation? As between the two big parties’ candidates, Juncker’s specific suggestions for a bigger role for the European Asylum Support Office would not do much to alleviate those problems. However, his greater focus on ensuring timely and correct implementation of the second-phase Common European Asylum System might well have that effect – if, by that, he means a new Commission policy devoted to bringing infringement actions more aggressively against Member States.

Schultz’s policies would alleviate the problems with the system via the indirect route of greater relocation, joint processing and resettlement. However, he does not offer many details of such policies, and notably he is only promising to ‘test’ joint processing. As regards relocation of refugees between Member States, it is necessary to have a legal framework for transfer of protection, but he does not mention this expressly. But on the whole, if these policies are pursued vigorously, they might alleviate the effect of the system somewhat.

So would the suggestion to make greater use of the issue of humanitarian visas, as suggested by Ska Keller. She is right to say that this is an existing possibility; in fact, this possibility was discussed previously on this blog.  

Of course, the various suggestions to alleviate the effect of the Dublin system could be combined with each other. If so, the total impact would surely be greater than if only one of the candidates’ suggestions were adopted.

The bigger parties’ candidates’ willingness to engage with third countries is fine if it concerns solely issues such as improvements in their economy and levels of human rights protection. It would be more problematic if it involved third States as remote controllers of EU borders, as long as many of the States in question have questionable human rights records.

As for legal migration, there are already proposals under discussion to amend the EU rules on admission of students and researchers, and to amend EU visa policyto encourage more tourists. So in that respect Schultz is simply supporting legislation that has already been proposed. Juncker’s idea of reforming EU rules to admit more highly-skilled migrants makes sense, but that is likely to have only a modest impact in reducing the numbers who might be inclined to come to the EU by irregular (‘illegal’) means.

Finally, as regards irregular migration, it is striking that Juncker lays more stress on increasing control, Schultz lays more stress on Commission evaluation and the other two candidates lay more stress on saving lives. While Schultz also mentions the importance of human rights in this context, he does not link that with the Commission’s evaluation role. On this point, while there are many good examples of Member States saving hundreds of lives at sea, there are also some bad examples of push-backs or other appalling treatment of migrants at borders. The Commission’s failure to respond to the latter cases has likely given Member States the idea that they can act with impunity.

Conclusions

This is the first time that the policy platforms of individual candidates for Commission President could be compared and assessed before citizens cast a vote for the European Parliament. In 2009, Barroso only produced a policy platform after he was nominated for the job by the European Council – and even that was a development compared to previous practice. The possibility to produce such an analysis, and for the candidates to debate, campaign on and answer public questions regarding immigration (and other) policies, shows the capacity of this new system of advance nominations to improve the democratic functioning of the European Union.

It is, of course, doubtful whether much of this debate has resonated with the general public. And as noted at the outset, it remains to be seen whether the European Council will accept the result of the process at the end of the day. But even if it does not (and the European Parliament accedes to a ‘backroom deal’ on appointment of the Commission President), the process of developing and debating policy might still be relevant when it comes to the Parliament obtaining policy commitments from the next Commission and the next Home Affairs Commissioner on these important issues.

Barnard & Peers: chapter 3, chapter 26

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Procedural rights and subsidiary protection

By Steve Peers

The first phase legislation of the Common European Asylum System (CEAS) set out a definition of ‘subsidiary protection’ (protection for those individuals who did not qualify for refugee status, but who still should not be sent back to their country of origin) in the Qualification Directive. However, other first phase CEAS legislation, most notably the asylum procedures Directive, did not apply to those applying for subsidiary protection. Nor did that legislation expressly regulate the relationship between refugee and subsidiary protection status.

This rather peculiar gap has been filled in several ways. First of all, as for the future, the second-phase CEAS legislation applies fully to applicants for subsidiary protection, and also regulates the relationship between refugee and subsidiary protection status. However, some of that legislation will not apply until July 2015; most notably, the Directive on international protection procedures (which replaces the asylum procedures Directive) will only apply to applications made after that point.

Secondly, a large majority of Member States already have a ‘one-stop shop’ procedure, in which applications for subsidiary protection are considered along with applications for refugee protection. In that case, the rules in the asylum procedures Directive apply to the whole procedure.

Thirdly, where Member States do not have such a procedure, the CJEU ruled in the M judgment that the general principle of EU law, set out in Article 41 of the EU Charter of Fundamental Rights, on the ‘right to good administration’, applied to the national process of considering subsidiary protection claims, even though the wording of the Charter restricted that right to EU bodies (as distinct from national administrations).

Today’s judgment in HN raises further questions about the nature of the procedure for deciding on subsidiary protection claims in Member States which do not have a ‘one-stop shop’. Furthermore, it has broader relevance beyond such situations. Like the M case, the HN case concerns a subsidiary protection application made in Ireland. Irish law not only requires two separate procedures for examining refugee and subsidiary protection status, but also requires the first issue to be resolved before the second one is. Mr. HN, who considered that he had no chance of success as regards refugee status but a good argument for subsidiary protection status, argued that these rules breached EU law.

 According to the CJEU, they did not. First of all, in light of the pre-eminence of Geneva Convention refugee status in the Treaties and secondary EU law, subsidiary protection is ‘intended for third country nationals who do not qualify for refugee status’. It followed that ‘an application for subsidiary protection should not, in principle, be considered before’ an authority concludes that an application for refugee status is unfounded. So the national law could not be criticised on that ground.

The CJEU also considered two other aspects of EU law: the principle of effectiveness and the right to good administration. As regards effectiveness, while Member States have some discretion to regulate the subsidiary protection process unless they have a ‘one-stop shop’ in place, such discretion is not unlimited. Since a two-step process delays the application process, it must be possible to make an application for both types of status at the same time, and to consider the subsidiary protection claim ‘within a reasonable period of time’, taking account also of the time taken to decide on the refugee claim first.

As for the right to good administration, the CJEU confirmed that Article 41 of the Charter was applicable to national proceedings linked to EU law. In this case, the relevant provisions were the right to an impartial decision, and the right to a decision within a reasonable time. The ‘reasonable time’ rule applied in the same way as the principle of effectiveness. Furthermore, the principle of impartiality was not violated simply because the applicant had been told, due to the failure of his refugee claim, that he might be deported, even before the subsidiary protection application was decided.

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There are a number of broader implications of the Court’s ruling. First of all, its confirmation that Article 41 of the Charter applies to all national proceedings within the scope of EU law is relevant well outside the scope of asylum law, and is therefore important given the large role that national administrations have in implementing EU law. For instance, the finding could be relevant as regards immigration, free movement or tax decisions (along with many others).

Secondly, while the Court’s judgment refers specifically to the right to an impartial decision, and to a decision within a reasonable time, there are several other aspects of Article 41 which must be equally applicable to national administrative decisions linked to EU law. In the M judgment, the CJEU already referred to the right to be heard. Article 41 also refers to fair administration, access to the file, the obligation to give reasons for decisions, a right to damages and linguistic communication rights.

As for the issues specific to asylum law, the Court’s judgment must logically mean that Article 47 of the Charter (the right to a court and an effective remedy) is also applicable to subsidiary protection claims by analogy, even in Member States without a one-stop shop. Arguably the EU Charter’s rights to dignity and social protection are also applicable to applicants for subsidiary protection in such Member States.

The Court’s approach in the M and HN cases is also relevant by analogy to cases where people apply for refugee or subsidiary protection in Member States from outside EU territory, after interception on the high seas for instance. While the asylum procedures Directive does not apply outside EU territory, there is no such geographic limit on the scope of the qualification Directive. So logically, the latter Directive applies to claims made outside of EU territory to Member States, and the Charter applies as regards procedural rights in such cases.

The Court’s approach to the relationship between refugee applications and subsidiary protection applications will make it more difficult for applicants to avoid the imposition of the EU’s ‘Dublin’ rules on allocation of asylum cases simply by means of withdrawing a refugee application, but simultaneously making or maintaining a subsidiary protection application. But this point is only relevant to applications made before the start of 2014 anyway, since as from that date the Dublin III Regulation applies, and that Regulation has extended the ‘Dublin’ rules to cover subsidiary protection applications.

What about the relationship between refugee status and purely national forms of protection outside the scope of the qualification Directive? There is nothing in the Court’s ruling today that addresses the relationship between such national forms of protection, which have not been harmonised by EU law at all, and the qualification Directive (or other EU asylum law, such as the Dublin rules). So it is still open to argue, for instance, that the Dublin rules cannot apply if a person is expressly applying only for a national form of protection. Conversely, it might be desirable to argue that the HN judgment applies by analogy if a Member State awards an applicant for refugee and/or subsidiary protection a purely national form of status, which gives that person fewer rights, without considering the former claims on the merits.

It is clear from this judgment that a claim for refugee status must always be refused before the possibility of subsidiary protection can be examined. This rule applies even before the second-phase procedures Directive sets it out expressly in EU law, and so applies to applications made before July 2015, including pending applications. Arguably, a Member State which has already awarded a person subsidiary protection without considering the merits of a refugee application can be called upon to reopen that process. However, it might be necessary for further case law to clarify the position where a person wishes to appeal the decision to refuse refugee status while the consideration of the subsidiary protection claim is ongoing.

Finally, it should be noted that even though the UK and Ireland have opted only into the first-phase qualification and procedures Directives, some key rules in the second phase legislation nevertheless apply to them, as a result of the CJEU’s interpretation of the first phase rules in its case law. In particular, they are bound by some basic procedural rules as regards subsidiary protection applications; they must consider a refugee claim before a subsidiary protection claim; and they must decide those claims within a reasonable time (although that rule is less precise than the precise time limits in the second-phase procedures Directive). So just because a rule appears expressly in the second-phase asylum law, but not in the first-phase asylum law, it doesn’t necessarily mean that the UK and Ireland are not bound by it; it is still possible that the first-phase legislation contains that rule implicitly. Of course, this is only one of the many legal complications arising from the complex system of opt-outs from EU law.


Barnard & Peers: chapter 8, chapter 26

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