EU migration policy: comments on the results of the latest European Council

Steve Peers

Alongside ‘Grexit’ and ‘Brexit’, the upsurge in immigration to the European Union is a further crisis which the EU has to juggle simultaneously. The first round of EU reactions to the crisis culminated in the emergency EU summit (‘European Council’) in April. I discussed the results of that summit here. Subsequently, the Commission released its ‘Agenda’ on EU migration in mid-May (see discussion here), and its detailed proposals later that month (see discussion here). Last week the European Council discussed immigration issues again, and came to a number of conclusions. This blog post sets out those conclusions, with my comments annotated. (I have left out the third part of the conclusions, which vaguely promise more cooperation with third countries.)

It’s interesting to compare the final text with the last draft of the summit conclusions (see full text here). To make that comparison easy, I have indicated below what changed between the penultimate and final versions of the text. (Underlined words were added to the final version; words in strikeout were deleted from it).

I. MIGRATION

1. Europe needs a balanced and geographically comprehensive approach to migration, based on solidarity and responsibility. Following the decisions taken by the European Council last April, concrete measures have been taken to prevent further loss of life at sea, to find new ways of confronting smugglers and to intensify cooperation with countries of origin and transit, while respecting the right to seek asylum. The launch of the EUNAVFOR MED mission, decided on 22 June by the Council, is an important contribution in this respect. Operational action to tackle the traffickers and smugglers in accordance with international law is an essential part of our comprehensive approach.

The EU's smuggling mission has officially got underway already, but its second and third phases (where the boats are destroyed) cannot get started until the Libyan government or the Security Council endorse the operation. For details and criticism see here.

2. Further to the Commission's European Agenda on Migration, work should be taken forward on all dimensions of a comprehensive and systemic approach.

The summit conclusions in fact address much of the detail of the Agenda.

3. Wider efforts, including the reinforcement of the management of the Union’s external borders, are required to better contain the growing flows of illegal migration. Today, the European Council focused on three key dimensions which must be advanced in parallel: relocation/resettlement, return/readmission/reintegration and cooperation with countries of origin and transit. The Council will regularly assess progress in all three strands and report back later in the year.

As noted above, I have omitted the third dimension (cooperation with countries of origin and transit) from this blog post.

Relocation/resettlement

4. In the light of the current emergency situation and of our commitment to reinforce solidarity and responsibility, and in line with its April decision in all its regards, including paragraph 3, the European Council agreed on the following interlinked measures to help 60.000 people:

Paragraph 3 of the April conclusions refers to the EU interception and search and rescue missions in the Mediterranean. Odd that such missions dare not speak their name in these latest conclusions.

a) the temporary and exceptional relocation over two years from the frontline Member StatesItaly and Greece to other Member States of 40.000 persons in clear need of international protection, in which all Member States will participate;

The final version of the conclusions adds a footnote stating that the UK will not participate. The number of 40,000 matches the number in the Commission’s proposal. So does the two-year time-frame, and the focus on Italy and Greece. The reference to ‘persons in clear need of international protection’ suggests that the focus will remain on Syrians and Eritreans (as the Commission proposed), as refugee claims from these two nationalities have a very high success rate.

b) the rapid adoption by the Council of a Decision setting up a temporary and exceptional mechanism to this effect; to that end, all Member States will agree by consensus by the end of July on the distribution of such persons, reflecting the specific situations of Member States;

There is a commitment to adopt a legally binding text, although presumably its content will differ greatly from the Commission proposal, in particular because many Member States dislike the idea (or the detail) of the Commission’s proposals on distribution. The added agreement that the distribution will be agreed by ‘consensus’ means effectively that the numbers accepted in each Member State will be voluntary, although the Treaty calls for qualified majority voting on this issue. The added reference to ‘specific situations’ is (according to press briefings) intended to exempt Hungary and Bulgaria from obligations, in light of the large number of asylum-seekers they currently receive. Obviously it is hard to see how the legally binding target of 40,000 asylum-seekers can actually be met if Member States only have to volunteer to take the relevant numbers. If a Decision with such an obligation is adopted but the offers of admission fall short of 40,000, there could be an interesting legal question as to whether and how the numbers could still be enforced.

c) the setting up of reception and first reception structured border zones and facilities in the frontline Member States, with the active support of Member States' experts and of EASO, Frontex and Europol to ensure the swift identification, registration and fingerprinting of migrants ("hotspots"). This will allow to determine those who need international protection and those who do not. The Commission will draw up, in close cooperation with the hosting Member States, a roadmap by July 2015 on the legal, financial and operational aspects of these facilities;

The reference to ‘structured border zones’ in the earlier draft has been altered, perhaps because some perceived it as a form of quarantine. Frontex is the EU borders agency, and the EASO is the EU asylum support agency. They don’t have powers to fingerprint migrants etc as such, but they can help coordinate Member States’ actions. On the other hand, it’s not clear why Europol, the EU police agency, needs to be involved, and indeed the conclusions seem to call for it to exceed its legal powers. It has a potential role in investigating smugglers, but the conclusions refer only to its involvement in an immigration law process.

Fingerprinting of irregular migrants who cross the external borders, as well as asylum-seekers, is a long standing EU law obligation in the Eurodac Regulation, but frontline Member States have often been accused of not applying it. If more such people are fingerprinted, then it will be easier to guarantee their return from other Member States like the UK under the EU’s Dublin rules on asylum responsibility, if those migrants travel to another Member State and apply for asylum there. The Commission recently released a paper on coercive methods to fingerprint migrants, discussed here.  

d) the immediate provision of enhanced financial assistance to the frontline Member States to help alleviate the costs of receiving and processing applications for international protection;

An emergency EU budget increase has already been approved.

e) the agreement that all Member States will participate including through multilateral and national schemesin the resettling of 20.000 displaced persons in clear need of international protection, reflecting the specific situations of Member States.

This matches a non-binding Commission Recommendation on this issue, which has already been adopted. Resettlement means that the persons concerned are moved straight from refugee camps in countries like Lebanon or Turkey. In fact the wording (‘displaced persons’) also covers Syrians who have fled to camps elsewhere within Syria. Legally speaking this group of people aren’t ‘refugees’ since they haven’t left their home country; international law refers to people who have fled within their own countries but who still have great protection needs as ‘displaced persons’ instead. They could qualify as ‘refugees’ once reaching the EU, however, since they would necessarily then have left Syria. The UK has pledged a very small increase in the small numbers of refugees that it currently resettles.

Return/readmission/reintegration

5. Effective return, readmission and reintegration policies for those not qualifying for protection are an essential part of combating irregular illegal migration and will help discourage people from risking their lives. All tools shall be mobilised to promote readmission of irregular illegal migrants to countries of origin and transit, building on the ideas presented by the Commission at the Council on 16 June.

Notice the word ‘illegal’ was changed to ‘irregular’, to address objections that the word ‘illegal’ is the wrong term to use. There is a footnote referring to the letter and it can be found via Google, but it is hardly transparent not to attach it as an Annex to the Conclusions. It’s not hyperlinked to the conclusions either. But you can follow this link for the text of the Commission letter and discussion of it.

It must be noted that this section only applies to people who do not qualify as refugees or for some other form of protection. Some press stories had suggested, on the basis of leaked drafts of the conclusions, that the EU wants to ‘send all the migrants back’. This is patently false: this section is clearly limited in scope (‘those not qualifying for protection’) and the first section of the conclusions not only shows an intention to relocate people needing protection within the EU but also to bring more of them to the EU. Since a significant proportion of migrants come from Syria and Eritrea, and a huge proportion of their asylum claims are successful, anyone who claims that ‘the vast majority of people crossing the Mediterranean are economic migrants’ is quite simply lying.

In particular: a) high-level dialogues with the main countries of origin of irregular migrants should be launched by the High Representative as soon as possible, in close cooperation with the Member States. The Council, together with the Commission, will prepare a global package to support the negotiations with the third countries concerned;

Most of the issues here are not foreign policy issues as such, so the High Representative should only be discussing them in her role as the coordinator of her colleagues in the Commission, not as foreign policy representative. So this looks like an internal Commission power grab, although it’s probably also true that she will come with more political authority than the Home Affairs Commissioner. There may of course be a corresponding power struggle between national foreign and interior ministries here.

b) the Commission will ensure that readmission commitments are implemented effectively as soon as possible, notably those under the Cotonou Agreement, and that ongoing negotiations on readmission agreements are accelerated and concluded as soon as possible, while new negotiations will be launched with other third countries;

The ongoing negotiations are with Belarus (nearly complete), Morocco and Tunisia. Talks with Algeria and China were approved years ago, but never started. The ‘Cotonou’ countries are sub-Saharan African, Caribbean and small Pacific island States, although obviously the conclusions are referring only to African states. 

c) building on the "more-for-more" principle, EU assistance and policies will be used to create incentives for implementing existing readmission agreements and concluding new ones. Commitments set out in trade agreements regarding the temporary presence of persons for the provision of services should be used as an incentive to conclude readmission agreements; development policy tools should reinforce local capacity building, including for border control, asylum, counter-smuggling and reintegration;

The EU has concluded readmission treaties with most countries to the east and south-east by offering visa facilitation deals, and in some cases the long-term prospect of a visa waiver. It has also offered visa facilitation to Morocco and Tunisia. It’s clear from the other recent documents that the EU doesn’t want to offer visa facilitation to sub-Saharan African countries, hence the quite new idea of offering them admission of service providers instead. Interestingly, the market access aspects of service provision apply to all Member States (ie, including the UK), although the immigration law aspects (such as facilitated visas and permits just for this category of persons) arguably fall within the scope of immigration law, where the UK opt-out applies. The Commission’s migration agenda had referred to plans to propose rules on this issue, but it had not linked them to readmission.

As for development policy cash, this also applies to all Member States, unless some external money in the home affairs budgets can be used. This phrase could also refer to national development policy budgets. The important question is whether this is new money, or will be diverted from building schools or hospitals, or aiding human rights defenders.  

d) Member States will fully implement the Return Directive, making full use of all measures it provides to ensure the swift return of irregular migrants; return decisions issued by the Member States will be introduced in the Schengen Information System;

Fully implementing an existing law sounds uncontentious, but in fact the Commission paper referred to above urges Member States to lock up irregular migrants for as long as possible and to use derogations in that Directive, which could justify limiting judicial review, and holding irregular migrants (including families) in prisons, mixed in with the general prison population of convicted criminals. Further comments on this here.

Some or all entry bans are already introduced in the Schengen Information System (SIS), and the Commission plans to propose a legal obligation that all of them will be. But introducing all return decisionsin the SIS is quite new, since not all return decisions result in entry bans. In fact, this is the first new category of data to be added to the SIS since it was established. It will take some time and money (as well as new EU legislation) to set this up.

Note that the UK will not have access to this data, since it does not participate in the immigration-related aspects of the Schengen system. It does have access to the separate Eurodac database, of people who applied for asylum or crossed the borders irregularly in another Member State, although it can only access this is those people then apply for asylum in the UK.

e) the Commission will set out by July 2015 how Frontex will bring immediate support to frontline States on return. The Commission has announced its intention to propose to amend the Frontex Regulation to strengthen the role of Frontex, notably so that it can initiate return missions;

The Commission paper also wants to give Frontex a role in going to third countries and arranging return flights, and in expelling people from a single Member State. The last set of amendments to the Frontex Regulation in 2011 allow Frontex to have its own assets. Perhaps ‘Air Frontex’ – the one airline you never want to travel on – is coming?

f) in order to accelerate the treatment of asylum applications, the Commission will set out by July 2015 measures to be taken to use EASO to coordinate the implementation of the "safe country of origin" provisions in the Asylum Procedures Directive. The Commission has indicated its intention to strengthen the "safe country of origin" provisions in the Asylum Procedures Directive, including the possible establishment of a common EU list of safe countries of origin;

It’s not clear what EASO will be doing here. It can’t decide on asylum applications, but only give guidance. As for the legislative proposal, the Council tried to agree on a common list of safe countries of origin in 2005, but failed epically. It’s not so problematic to include countries where the failure rate is 99%, but becomes difficult to include countries where even 10% or 20% of applications are successful – since that is a lot of people whose claims won’t be adequately assessed.

g) adequate means will rapidly be made available in support of an effective EU return policy; furthermore, the Commission is invited to make proposals in this respect in the context of the 2016 EU budget, and to set up a dedicated European Return Programme.

This suggests more cash will soon be available for removals. It looks as if the ‘European Return programme’ is simply going to be an official name for this pot of cash, to give it greater visibility.

Final comments

Some analysis of the summit suggests that it was a failure on immigration issues, because Member States wouldn’t agree to binding quotas on relocation of refugees. This isn’t necessarily the case. The summit conclusions still refer to adopting a binding measure requiring the relocation of 40,000 people. If Member States do end up relocating 40,000 refugees, there’s not much point quibbling about exactly how they did it. However, the replacement of quotas by voluntary offers makes it less likely that this number will be achieved, and in that case the Council might decide not to adopt the Decision after all.  

Having said that, even if the number of people relocated ends up at 20,000 or 30,000, instead of 40,000, that will contribute to reducing the pressure on Greece and Italy. It will be significantly more than the piddling number of people relocated in the past. The very existence of this commitment is an implicit admission that the Dublin system is a failure. And the commitment to resettle 20,000 people is a bigger contribution than the EU has made before in that context too.

All this is counterbalanced by the decisions on return and readmission. It seems that there is a quid-pro-quo between a more generous policy on asylum and a more restrictive policy on irregular migration. Certainly this part of the conclusions shows the importance of implementation of EU law by the Member States. The Commission has committed itself to encouraging Member States to apply the Directive as restrictively as possible, so it will fall to NGOs and migrants’ legal advisers to monitor what goes in practice, and challenge it if necessary.

‘The Commissioner suggested that we do it’ is not in any way a sufficient legal reason to lock up families together with convicted prisoners, while limiting judicial review. Rather, any Member State wanting to apply exceptions from detention standards in the Returns Directive has to show that an ‘exceptionally large number of third-country nationals to be returned places an unforeseen heavy burden on the capacity of the detention facilities of a Member State or on its administrative or judicial staff’, presumably separately (ie it’s possible that the facilities are overburdened but the judges aren’t, or vice versa). It must also end the derogation as soon as conditions have changed, and also inform the Commission. CJEU case law (Kamberaj) suggests, by analogy, that the decision to lower detention standards is invalid unless that latter procedural requirement is fulfilled.  There’s a good argument that derogation clause is itself invalid, as a breach of the Charter rights to family life, access to court and the rights of the child. At the very least it must be interpreted in light of those Charter rights, and the similar protections set out in Article 5 of that Directive.

Barnard & Peers: chapter 26

Photo: Zaatari refugee camp in Jordan, by US Department of State

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What remedies do asylum-seekers have in the Dublin system? Details of new case

Steve Peers

Here are the questions and background information in a new Dutch reference to the CJEU, the first case concerning the latest version of the EU's asylum responsibility rules (known as the 'Dublin III Regulation'). It's a rough, unofficial translation from the original. Thanks to Flip Schuller, lawyer at Prakken D'Oliveira, for this.

Preliminary questions from the court The Hague (Den Bosch)

Case number: AWB 14/12282

Brief summary of the case

The applicant applies for asylum on 04-03-2014. Based on research in the EU-VIS-system it turns out that the applicant received a visa from the French representation in Iran on the date 17-12-2013. This visa was valid from 17-12-2013 until 11-02-2014.

On 07-03-2014 the State Secretary for Security and Justice requested France to take charge of the application of the applicant. The French authorities accepted this request on 5-5-2014.

 

The State Secretary has the view that France is responsible for determining the application for international protection based on article 12(4) of Regulation 604/2013. The applicant had a visa and furthermore the French authorities accepted the take-charge request from NL. Furthermore, the State Secretary finds that the applicant did not prove that he left the territories of the EU MS since he did not provide with documents to underline his travel from France-Iran and Iran-Netherlands. He states that the submitted documents are prepared only on the request of the applicant which lead to the conclusion that these documents are not reliable (not objective evidence). Therefore the State Secretary finds it not credible that the applicant did actually leave the territory of the EU MS, even if one should have the view that the delivered documents are authentic.

The applicant declared that he made use of the visa on 18-12-2013, that he slept one night in Paris and then returned to Iran. Then he travelled on 20-02-2014 illegally from Iran, through Turkey and finally arrived in the Netherlands somewhere around 01-03-2014. The applicant declared that his passport with stamps is taken by the Sepah-e Pasdaran-e Enqelab-e and that he doesn’t have evidence to submit about his travel. The applicant emphasizes that he did not have troubles in Iran before and that the problems firstly arose on 15-02-2014.

To underline the applicant resided in Iran after being in France, he submitted the following documents:

-          A statement from his employer;

-          A statement from a physician;

-          A signed agreement on the sale of property. With regard to that the applicant states that it is dated on 10-01-2014 and that he had to sign this agreement in person.

 

The preliminary questions are:

1. What is the extent of article 27 of Regulation 604/2013 [the right to an appeal], whether or not in conjunction with consideration 19 of the Preamble of Regulation 604/2013?

Does an applicant, in a situation like this, where the applicant firstly after a claim-acceptance is confronted with the Dublin claim and the applicant thus evidence submits after the claim-acceptance which could lead to the conclusion that not the requested EU MS but the requesting EU MS is responsible for the application for international protection, and that then the requesting EU MS does not examine the submitted evidence nor submit it to the requested EU MS, based on this article (thus art. 27) has a right to an (effective) remedy against the application of the criteria for determining the EU MS responsible (mentioned in chapter III of Regulation 604/2013?

 

2. Is, in case the applicant based on the Regulation 604/2013, and also based on Regulation 343/2003, in principle doesn’t have an appeal on the incorrect application of determining the EU MS responsible when the requested EU MS has accepted the take-charge request, the view of the State Secretary for Security and Justice correct that this starting point only has an exception in family situations as mentioned in art 7 of Regulation 604/2013, or could there be other particular facts and circumstances considerable on which an applicant can appeal to an incorrect application for determining the EU MS responsible?
 

3. In case the answer on question 2 is that also apart from family-situations other circumstances could lead to the conclusion that an applicant can appeal on the basis of an incorrect application of the criteria for determining the EU MS responsible, could that be the facts and circumstances mentioned in consideration 12 of this judgment? [These are the documents mentioned in the summary of the case.]

 

Barnard & Peers: chapter 26

 

 

 

 

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Mr. Avramopolous goes to Brussels: thoughts on the EP hearing of the new Migration Commissioner

Steve Peers

During his marathon three-hour hearing today in the European Parliament, the designated Commissioner for migration and home affairs, Dimitris Avramopolous, repeatedly stated his adherence to liberal principles. He strongly supported the continuation of the Schengen system, a liberal approach to asylum and legal migration, and freedom of movement for EU citizens. What was lacking was further detail on how his principles would be put into practice, and how the different aspects of EU policy in this area fit together.

Let’s take legal migration first. The would-be Commissioner supported not only a revision of the existing Blue Card rules on highly-skilled migration, but also a more comprehensive overhaul of EU rules on legal migration. Indeed, he explicitly supported an EU system for legal migration resembling the liberal regimes of Canada and Australia.

Yet he did not give a timetable for suggesting reforms in this area, even though the Commission has recently produced a report on the problems with the implementation of the Blue Card system, and the potential reforms of this system can easily be identified. (For an example of what an EU immigration code might look like, see my Statewatch analysis on this issue).  

He stated repeatedly that he believed that more liberal rules on legal migration would help to solve the problem of migrants’ loss of life en route to the EU, and reduce irregular migration more generally. But it’s hard to believe that Member States would give legal status to all of these would-be migrants. It should be recalled that, in accordance with Article 79(5) TFEU, Member States in any event retain competence to decide on the numbers of economic  migrants coming from third countries.

As for asylum law, he appeared to believe that the implementation of the second phase of the Common European Asylum System (in July 2015), as well as EU legislation on legal migration, would be sufficient to secure mutual recognition for refugee decisions in the EU.  But the existing EU rules only allow refugees and persons with subsidiary protection to move between Member States once they have qualified as long-term residents. To do this, they have to reside legally in a Member State for at least five years, and meet other conditions as well. If they do then move between Member States, their protection status does not in fact travel with them (except if they are moving between the small number of States which have ratified a Council of Europe Convention on this issue).

These limited possibilities for persons with international protection to move between Member States do not come anywhere near to satisfying the principles of ‘solidarity, solidarity and solidarity’ which he referred to as regards EU asylum law. Further solidarity could only be assured by redistributing more persons with international protection, as well as asylum-seekers, between Member States. On the latter point, he did at least promise to review the EU’s problematic Dublin system on the responsibility for asylum-seekers. However, as with the last review, it will surely prove difficult to convince richer Member States to change the responsibility rules.

Mr. Avramopolous opposed the notion of a ‘Fortress Europe’, objecting to ‘push-backs’ at the external borders and distancing himself from a fence built at the Greek/Turkish border by a government which he was a minister in. Although he supported a review of the mandate of Frontex, the EU’s border agency, apparently to include search and rescue issues, he did not suggest any concrete measures to supervise Member States’ operational activities at the external borders in the absence of Frontex coordination.

He did support the idea of humanitarian visas to ensure that protection-seekers could enter the EU without having to undertake unsafe journeys. But his specific proposal to this end was rather utopian. His idea to appoint staff in EU delegations in third countries to consider asylum applications is attractive in principle, but would be difficult to implement in practice. In order to put the plan into effect, it would be necessary both to reconceive the nature of the EU’s external delegations, and to give EU bodies, rather than the Member States alone, a role in taking decisions concerning visas and asylum in individual cases.

The easier course, which could be implemented immediately without such additional legal and political complications, would be to provide explicitly in EU legislation for an obligation for Member States to issue humanitarian visas to asylum-seekers in their external consulates. Arguably, the EU’s current visa code already implicitly contains such an obligation. The negotiations on the current proposal to revise the visa code offer an opportunity to set out this rule explicitly in EU law.

Overall, then, the would-be Commissioner cannot be faulted on his commitment to the basic principles which would underlie a liberal immigration policy for the EU. But his understanding of the practical details and the overall coherence of the policy is clearly a work in progress.

Barnard & Peers: chapter 25, chapter 26

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Penalising Refugees: when should the CJEU have jurisdiction to interpret Article 31 of the Refugee Convention?

Yewa Holiday

PhD Candidate at Queen Mary, University of London researching Article 31 of the Refugee Convention and prosecutions of asylum seekers and refugees in the UK.

The CJEU has held in  Qurbani (Case -481/13) that it does not have jurisdiction in relation to the interpretation of Article 31 of the 1951 Refugee Convention and its 1967 Protocol.  Article 31(1) states that refugees (which includes asylum seekers) must not be penalised by states which have ratified the Refugee Convention for entry or presence without authorisation if they ‘present themselves without delay to the authorities and show good cause for their illegal entry or presence.’ The article also requires that the refugee comes ‘directly’ from a country where his life or freedom was threatened in the sense of Article 1 of the Refugee Convention.[1]This cautious conclusion arose from the request by the Bamberg Higher Regional Court, Germany of a preliminary ruling under Article 267 TFEU in relation to criminal proceedings against Mr Mohammed Ferooz Qurbani for forgery of documents, illegal entry, unauthorised stay and unauthorised stay without a passport. It is arguable that Qurbani is a missed opportunity to address the questions raised by the Bamberg Higher Regional Court which demonstrate the importance and continuing relevance of Article 31(1) protection for asylum seekers and refugees.

Mr Qurbani is an asylum seeker from Afghanistan. He had used the services of a ‘human trafficker’ to travel through Iran and Turkey to Greece. He then flew on 17 August 2010, using a false Pakistani passport which he obtained from another ‘human trafficker’, to Munich where he was arrested when he presented the false passport. Mr Qurbani immediately claimed asylum (the application remains outstanding).  On 11 April 2011, the Warzburg Public Prosecution Service applied to the Local Court for a penal order against Mr Qurbani in relation to the above offences. The order was challenged by Mr Qurbani.  On 4 February 2013, the Local Court acquitted him of all charges and noted that the right of asylum, contained in the German constitution, prevented Mr Qurbani being convicted of unauthorised stay and unauthorised stay without a passport; and the exemption from penalties provided for in Article 31 of the Refugee Convention applied to the offences of unauthorised entry and forgery of documents. The Public Prosecution Service appealed on a point of law to the Bamberg Higher Regional Court arguing that Article 31(1) was not applicable because Mr Qurbani had not entered Germany from a state of persecution but had passed through another member state, namely Greece. It was also argued that Article 31(1) concerns only unauthorised entry and could not therefore deprive the German authorities of the possibility of punishing offences connected to that entry. The Higher Regional Court stayed the proceedings and referred three questions to the CJEU for a preliminary ruling. Firstly, the Bamberg Court wanted to know whether the suspension of penalties in Article 31(1) included offences which were additional to illegal entry, such as the forgery of a passport when the forged passport was not necessary to apply for asylum in Germany. The second question was whether the use of human traffickers precluded reliance on Article 31(1). The final question was whether the factual requirement in Article 31(1) of coming ‘directly’ from a territory where the life or freedom of the person concerned was threatened, was to be interpreted as meaning that that element was satisfied if the person concerned first entered another Member State (in this case, Greece) from where he continued to another Member State (Germany) in which he sought asylum.

Article 31 does not find a direct counterpart anywhere in EU legislation. Article 14(4) and (5) of the 2004 EU Qualification Directive provides for situations where member States might revoke or decline to grant refugee status, such as if there are ‘reasonable grounds’ that the person is a danger to national security, and Article 14(6) provides that such persons are nevertheless entitled to the rights set out in the Refugee Convention, including Article 31. The CJEU also considered the relevant German law (paragraph 267(1) of the Criminal Code). The CJEU noted that there was no clause conferring jurisdiction on it by the Refugee Convention and the CJEU could only interpret Article 31 if this was covered by Article 267 TEU. However, the CJEU (citing TNT Express Nederland, paras. 58 and 59) could only provide interpretations by way of preliminary ruling if the law or rules were part of EU law. While international agreements concluded by the EU were thereby part of the EU legal order and could therefore be the subject of a preliminary ruling, the CJEU did not have jurisdiction to interpret, in preliminary ruling proceedings, international agreements concluded between member states and non member countries. The CJEU would only have jurisdiction to interpret such a convention where the EU had assumed the power previously exercised by the member states in the field in which the international agreement was concluded and therefore provisions of the convention would bind the EU. Although EU legislation had been adopted in the field to which the Refugee Convention applied as part of the implementation of a Common European Asylum System, member states had retained certain powers within this field, specifically, in relation to Article 31. The court therefore did not have jurisdiction to interpret Article 31 notwithstanding Article 78 TFEU and Article 18 of the Charter of Fundamental Rights of the European Union. The CJEU noted that while it accepted it had jurisdiction to interpret the provisions of the Refugee Convention to which EU law made reference (referring to Bolbol (C-31/09 EU:C:2010:351); and Abed El Karem El Kott and Others (C-364/11, EU:C:2012:826)), no reference to any rule of EU law had been made in Mr Qurbani’s case and his case did not raise any issue under Article 14 of the 2004 EU Qualifications Directive.  

Comment

It is disappointing that the court concluded that it did not have jurisdiction in relation to Article 31 in this case.  The CJEU recognised that it might have jurisdiction in a future case in relation to Article 31, for example, if issues were raised relating to article 14 of the 2004 EU Qualifications Directive. The second-phase reception condition Directive and the Dublin III Regulation both mention Article 31 of the Convention in their preambles. This is in the context of the detention of asylum-seekers which relates to Article 31(2) rather than Article 31(1). This suggests that Article 31 could also be interpreted by the CJEU in this context. However, it can be argued that Qurbani did have jurisdiction. Article 3a of the Schengen Border Code (in force 19 July 2013) refers to compliance with the Refugee Convention generally. Article 3 of the same Code applies to any person crossing an internal or external border of a state ‘without prejudice to:…(b) the rights of refugees and persons requesting international protection, in particular as regards non-refoulement.’  Article 5 refers to the requirement of valid documents and visas for third country nationals. Article 7 refers to the falsification of travel documents.  Article 4(3) refers to the imposition of penalties for the unauthorised crossing of external borders (although it adds ‘at places other than border crossing points or at times other than the fixed opening hours’).  It would seem to be at least implicit that Article 31 of the Refugee Convention would be relevant to the obligation in the Code to impose penalties for crossing the borders without authorisation.

The questions raised by the German court remain unanswered by the CJEU but I have provided some provisional answers below.  

Is Article 31(1) of the Refugee Convention applicable to the forgery of documents which take place when a forged passport is presented to a police officer on entry to Germany by air, when the forged passport is not necessary to apply for asylum?

It is not necessary to present a passport, forged or otherwise, to claim asylum. However, claiming asylum would be impossible for many if they did not have recourse to false documents. This was recognised in the 1949 UN Study on Statelessness and a 1950 Memorandum by the UN Secretary-General which both stated that refugees fleeing from their country were rarely in a position to obtain and use (genuine) passports or obtain visas into the country of refuge. The Secretary-General’s draft convention therefore contained the novel Article 24(2) which corresponded to what later became Article 31(1). Illegal entry includes the use of false or falsified documents while illegal presence includes, as noted by Goodwin-Gill, ‘the use of other methods of deception, clandestine entry (for example, as a stowaway), and entry into State territory with the assistance of smugglers or traffickers’. In the UK, it was accepted in Adimi, and subsequent cases such as Mateta, that the exemption from penalties in Article 31(1) applied to the use of false passports. Similarly, in Asfaw, the then House of Lords recognised that an offence of attempting to obtain services by deception (that is, when transiting the UK, trying to get on a plane to claim asylum elsewhere) was caught by Article 31(1) of the Refugee Convention. Article 31 is applicable to Mr Qurbani’s presentation of the forged passport at Munich airport (as indeed it would be to all the offences with which he was charged).

Does the use of human traffickers preclude reliance on Article 31 of the Refugee Convention?

The use of false passports and travelling without a passport are inextricably linked with the use of smugglers and traffickers. The use of the term human traffickers by the German court is interesting. In the UK, the language used by the courts is usually ‘agent’. In reality, the term trafficker or smuggler is probably more appropriate. In some UK cases, the facts appear to raise issues that the asylum seeker has been trafficked (for example, Sadighpour) but it is rare for this to be raised in the court. In other cases (for example, Mateta), the refugee is under the control of an agent who decides on the route, the means of travel, when and where the person will stay and the country of asylum. Refugees do not usually have a choice in how they flee. To decide that refugees cannot rely on the prohibition in Article 31 if they rely on traffickers would therefore render Article 31 useless as a form of protection for asylum seekers and refugees.

Can a person who enters a first member State (Greece) but then goes on to apply for asylum in a second member state (Germany) come within the phrase coming ‘directly’ from a territory where the life or freedom of the person concerned was threatened in Article 31 of the Refugee Convention?

The short answer to the final question is ‘Yes!’ In considering a stay or transit in an intermediate country, what must be assessed is whether the asylum seeker or refugee is able to obtain protection there. The Conference of Plenipotentiaries which negotiated the Refugee Convention was particularly concerned with the subsequent movement of refugees after they had reached safety. However, this cannot be interpreted to mean that a refugee cannot move on subsequently if in fact he or she does not obtain protection in the country of first or subsequent stay. Mr Qurbani travelled via Iran and Turkey before reaching Greece. Iran has ratified the Refugee Convention. However, there are barriers to obtaining (and retaining) refugee status in Iran for Afghani asylum seekers. For example, Human Rights Watch has described in a 2013 report how it is ‘virtually impossible’ for newly arrived Afghan asylum seekers to lodge asylum claims in Iran. In any case, if Mr Qurbani was in transit under the control of an agent or trafficker, he would not have been in a position to claim asylum. Turkey has also ratified the Refugee Convention but it has limited its application to refugees coming from Europe. It has traditionally had a temporary protection refugee regime for non-European refugees, such as Afghanis, which runs parallel to UNHCR procedures. In April 2013, Turkey enacted a Law on Foreigners and International Protection. However, this maintains the geographical limitation. In relation to Greece, the CJEU, in NS & Others, held that EU Member States cannot return asylum seekers to countries, such as Greece, where they would be at risk of ill-treatment contrary to Article 3 of the ECHR. The ECrtHR, in MSS v Belgium and Greece held there to be deficiencies in the Greek examination of the applicant’s asylum claim and a consequent risk that he would be returned directly or indirectly to his country of origin; and the applicant was exposed to conditions of detention and living conditions which violated Article 3 of the ECHR. It would therefore appear that a country such as Greece cannot be said to be a place where an asylum seeker may obtain protection from persecution such as would preclude reliance on Article 31. This argument was accepted in cases such as Matetaand Jaddi. In Norway, following a judgment of the Norwegian Supreme Court (see also ECRE) on 24 June 2014, new guidelines exempt from prosecution refugees who have made necessary stops in other safe countries before reaching Norway. Previously, Norwegian police interpreted this as exempting from prosecution only those asylum seekers who had not passed through any other ‘safe country’ during transit.

            Prosecutions of asylum seekers and refugees occur in the UK, Germany and Norway (with local differences). There may be prosecutions in other countries. What Qurbanihighlights is the restrictive interpretation being placed on Article 31(1) by European governments and the continuing relevance of Article 31(1).

Barnard & Peers: chapter 26

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[1] At the time it was drafted, this reference to Article 1 meant that it applied only to events occurring before 1 January 1951. The ‘coming directly’ phrase was inserted at the request of the French at a late stage because France was concerned that Article 31 would apply to others who had no connection with the events occurring before January 1951. It is debatable how relevant the phrase is after the coming into force of the 1967 Protocol which has removed this temporal limitation.

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External processing of applications for international protection in the EU

Steve Peers

Last autumn's huge loss of lives near Lampedusa, when hundreds of migrants drowned in the Mediterranean, was one of the latest and most dramatic death tolls in the recent history of irregular crossing of that sea. It ought to have led to a complete rethink of EU policy toward border controls and visas, but did not - doubtless because of the belief that far-right parties would capitalise on the increased public concern about migration that would result.

Of course, irregular migration flows are 'mixed': they consist of some people with a legitimate need for international protection, as well as some people who don't have such a need. The former group has a right to enter and stay on Member States' territory, while the latter group in principle does not - although this obviously doesn't mean that such migrants should be left to drown.

While no potential solution to this dilemma is simple, or would solve all the related problems, a move towards greater external processing of asylum seekers would clearly be a step in the right direction. It would mean that at least some of those migrants with a legitimate need for international protection would be able to obtain safe passage to EU Member States' territory without having to risk crossing the Mediterranean in unsafe vessels, having had to pay unscrupulous smugglers a fortune to arrange their journey.

For the last decade, the idea of external processing of asylum applications was tarnished by its association with suggestions made by Tony Blair for a new approach to asylum seekers coming to Europe.  His ideas, which seemed to have been worked out on the back of an envelope, and were clearly inspired by Australia's 'Pacific solution' to refugees, envisaged external processing as the exclusive route for asylum seekers to obtain refuge in the EU.

They were incompatible with human rights obligations, and entailed a degree of cooperation from third countries which either would not have been offered, or should not have been accepted if it was. This approach might have entailed agreements with Khadafy's Libya, or Putin's Russia, to host refugees and asylum seekers. If Putin were currently in a position to release many thousands of refugees who wished to make their way to the EU, the Union's reaction to his annexation of Crimea and sabre - rattling in eastern Ukraine would be even milder than it is already - if that's possible.

A new approach

Blair's ideas have been kicked into the long grass several times by the EU. But certainly the idea of joint external processing in principle has merit, if it has completely different premises from his suggestions. In particular, such processing should in no way prejudice applications made at the border or on the territory of Member States, and must entail the entry and stay of persons with international protection needs either on the territory of Member States, or on the territory of third countries which offer an equivalent level of protection. Nor should joint processing prejudice the resettlement of those groups of persons (such as Syrian refugees) whose need for international protection is obvious.

However, the EU will need time to work out the details of joint processing, for instance how to allocate the beneficiaries of international protection between Member States. In the meantime, there is now a perfect opportunity to adopt rules on purely national external processing of asylum applications, in the form of the proposed amendments to the Schengen visa code.

This is the second of four posts on this blog dealing with these proposed amendments. The first post dealt with the impact of the proposals on EU citizens’ third-country national family members, and the remaining posts will deal with the substance of the proposals as regards short-term Schengen visas and the newly proposed ‘touring visa’.

The proposed amendments to the visa code retain the existing possibility for Member States to issue a short-term visa with ‘limited territorial validity’ (LTV), ie the visa is not valid in all Schengen states, but rather valid usually in only the single Schengen State which issues it. But admission to only one Member State is clearly better than facing a risk of harm outside the EU. Once the visa expires, the person concerned can be given a longer-term residence document; in fact, the EU’s qualification Directive requires that a recognised refugee or beneficiary of subsidiary protection must receive a residence permit, and the EU Directive on asylum procedures specifies that in principle asylum-seekers cannot be removed from a Member State’s territory before a decision is made on their application.

The new proposal would make no substantive changes to the current rules in the visa code on LTV visas (see Article 22 of the proposal, as compared to Article 25 of the current code). However, it would be open to the European Parliament and the Council to insist that changes ought to be made.

According to the current visa code, and the proposed amendments, an LTV visa ‘shall be issued…when the Member State concerned considers it necessary on humanitarian grounds, for reasons of national interest or because of international obligations’. The important point is that an LTV visa can be issued where the usual conditions for issuing a visa are not met, for instance where there is insufficient evidence of an intention to return to the country of origin. Obviously, where a person has a genuine protection need, a reluctance to return to her country of origin is perfectly understandable; indeed, it is built into the very definition of refugee or subsidiary protection status (ie a well-founded fear of suffering persecution or serious harm in that country).

It should be noted that the CJEU has recently ruled in the Koushkaki judgment that in principle an ordinary Schengen visa must be issued when the applicant satisfies the criteria to obtain one, subject to a wide degree of discretion for Member States’ authorities to assess whether those criteria are satisfied. Does the same rule apply to LTV visas? At first sight, it does, due to the word ‘shall’, although that is qualified by the words ‘considers it necessary’.

Arguably, at least in cases involving a potential international protection need, the EU Charter of Fundamental Rights requires that where a person applies for a visa from a (Schengen) Member State, the existence of such a need must be considered if it is alleged, and an LTV visa must be issued if such a protection need exists. The Member State’s Charter obligations would also be satisfied if it issues an LTV visa to the person concerned when the application for international protection is made, and considers the merits of the application while that person is on its territory. It can hardly be denied that EU law (and therefore the Charter) applies whenever a third-country national applies for a visa from a Schengen Member State.

The substantive law applicable to the consideration of the application would be the EU’s Qualification Directive, since that Directive does not limit its geographical application. However, the EU’s legislation on asylum procedures and reception conditions only applies to applications made at the border or on the territory of Member States. But since the EU Charter applies to applications for visas made on the territories of third States, it must follow that some basic standards compliant with the Charter would apply to the procedures and reception conditions would still be applicable. There would be no need to decide which Member State is responsible for considering the application, since the EU’s Dublin rules are subject to the same geographic limitations.

If this interpretation is correct, the current and proposed visa codes already include implicit rules covering those applying for international protection. However, it would be preferable to include express rules to this effect. There would be no need for elaborate provisions on this issue, since the details of such purely national forms of external processing of asylum applications do not need to be harmonised in great detail. It would be sufficient to provide that an LTV visa ‘shall be issued…when it is necessary in order to ensure the international protection of the person concerned in accordance with Directive 2011/95 [the Qualification Directive], or when the Member State concerned considers it necessary…’.

This would be a modest but important step towards reducing the appalling death toll of those migrants who cross the Mediterranean in search of a new life in the European Union.


Barnard & Peers: chapter 26

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The CJEU secures asylum seekers' right to family housing

Steve Peers

What obligations do Member States have to ensure that asylum-seeking families are housed adequately? The Court of Justice of the European Union (CJEU) has today usefully clarified the minimum standards which Member States must observe on this issue, in its judgment in Saciri. This judgment is a welcome confirmation that whatever the practical difficulties facing Member States in managing their reception for asylum-seekers, families cannot simply be left homeless or forced to live in grossly inadequate conditions by means of the refusal of support for financial assistance to obtain housing.

Judgment

The case concerns a family of asylum-seekers (two parents and three children) who needed accommodation in Belgium while their asylum application was being considered. The Belgian agency responsible for reception of asylum-seekers replied that it could not provide reception, and referred them to the social assistance agency. Since the Saciri family could not pay the rent being charged for private properties, they asked the social assistance agency for financial support.

But there was a 'Catch-22': the agency refused to give them support, since the family was not living in accommodation provided for by the reception agency - even though the reception agency had told them that it could not help them. A lower court in Belgium ruled that the reception agency had to pay them financial support, and that agency appealed to the referring court, which asked the CJEU questions about the EU's first-phase reception conditions Directive.

First of all, the CJEU pointed out that the Directive allows for support for asylum-seekers either in kind (ie providing housing directly) or by providing financial allowances. Then it confirmed its prior case law (Cimade and GISTI) to the effect that benefits must be provided as soon as the asylum application is made, in particular in light of the right to human dignity set out in the EU Charter of Fundamental Rights.

Next, as for the amount of the financial allowances, regardless of how the aid is provided, the Directive states that it must ensure a dignified standard of living for applicants' health, as well as subsistence. Member States must also, according to the Directive, take account of those with special needs (including minors), entailing a requirement to preserve family unity as well as the best interests of the child. The CJEU confirmed that these principles meant that applicants must be able to obtain housing on the private market if necessary, although this did not mean that asylum-seekers could make their own choice of housing.

The CJEU then ruled that, although the specific rules in the Directive relating to housing only apply where the housing is provided in kind by Member States, it still followed that any allowances provided to assist with housing had to ensure the unity of the family.

Finally, the Court ruled that where accommodation facilities are overloaded, it was open to Member States to refer asylum-seekers to the authorities responsible for public assistance, provided that the latter authorities ensure that the minimum standards in the Directive are met.

The Court concluded by noting that 'saturation of the reception networks [is not] a justification for any derogation from meeting' the standards in the Directive.

Comments

The CJEU's judgment neatly addresses the 'Catch-22' created by national law, which to some extent reflects the structure of the Directive. On the one hand, the Directive lays out general rules on reception support, but then on the other hand, it only lays out detailed rules as regards housing where the State provides such housing in kind. What if the State does not, or cannot, provide for housing in kind?

The Court's answer to this question takes account of the definition of 'material reception conditions' in the Directive, which expressly includes 'housing'. So it logically follows that such material support must include assistance to obtain housing, where no housing is provided for in kind.

Moreover, it is expressly clear from the Court's judgment that a family of asylum-seekers is entitled to support to obtain family housing on the private market, although the Court does recognise that the asylum-seekers do not have a fully free choice of where they may be housed. This necessarily means that, if there is no publicly-provided accommodation available, the authorities must ensure that a family of asylum-seekers has enough support to afford to rent a property at market rates, which is big enough to house their family in dignity. But the house need not be palatial. Probably this means that a family of five cannot demand enough financial support to rent a four-bedroom house; but neither can they all be expected to sleep on the same sofa.

The Court's answer to these questions was not affected by the overloading of the Member State's reception system. This had practical consequences, in that asylum-seekers can be referred to the social assistance agency instead of the reception agency, and be provided with a financial allowance instead of housing in kind. But the basic obligation to provide enough assistance to ensure a minimum dignified level of accommodation, including family unity, cannot be derogated from.

Finally, it should be noted that the judgment takes a stronger approach to family unity than the wording of the Directive, which states only that family unity shall be ensured 'as far as possible', and only where Member States provide for accommodation in kind. The Court's judgment means instead that families of asylum-seekers must be able to live together in all cases, if necessary in private accommodation, even if this means some additional cost or administrative inconvenience for Member States. This can only be welcomed, as it is an essential step to ensure the protection of the family life of some of the most vulnerable people in the European Union.


Barnard & Peers: chapter 26

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