The Commission’s new EU Migration Strategy: Waiting for the Great Leap Forward

 

Steve Peers

Today this Commission releases its EU immigration strategy. The final text is not available yet, but here are my thoughts on the earlier version, leaked on Monday. I will update them if the final strategy differs significantly from the leaked draft.

Content

The migration strategy is divided into three parts. First of all, it sets out ‘immediate action’ to address the migrant death crisis. Secondly, it describes an agenda for immigration management in four areas: irregular immigration, border management, asylum and legal migration. Finally, it briefly sets out some long-term objectives.

Immediate action

The ‘immediate action’ section largely elaborates upon the strategy already defined by EU leaders in response to the deaths in the Mediterranean. As I discussed already, this is a modest response to the crisis, focussed mainly upon enlarging EU interception operations in the Mediterranean and destroying smugglers’ boats.   

However, the Commission paper suggests more ambition in two areas. First, it wants to go further on the ‘relocation’ of asylum-seekers between Member States. This would mean that frontline states like Italy and Malta do not have to deal with so many asylum-seekers, which would normally be their responsibility under the EU’s Dublin rules on this issue. So on this issue, the Commission will propose by the end of May ‘emergency response’ legislation on the basis of Article 78(3) of the TFEU, which will allocate asylum-seekers coming as part of a mass influx between Member States. These laws will be subject to a qualified majority vote in the Council, but the European Parliament (EP) will only be consulted. The Commission will then follow that up with a proposal by the end of 2015 for a permanent system of relocation, on the basis of the ‘ordinary legislative procedure’, ie the usual powers of the EP. I have already discussed separately the question of whether they would apply to the UK.

Secondly, the Commission wants to go further on resettlement, ie the entry of recognised refugees now in third States into the EU. On this issue, the Commission will make a Recommendation on resettlement, to be followed by a binding proposal for legislation if this proves insufficient. Extra EU funds will be made available to assist resettlement.

Irregular immigration

First of all, the Commission wants to address root causes of irregular migration, by focussing the money the EU already spends on these issues. There is no clear commitment to more spending. Next, the Commission wants to address smuggling of migrants, with an ‘Action Plan’ to be produced by the end of May. The Commission doesn’t mention this, but a review of the current EU legislation on smuggling of migrants is now underway. Also, the Commission wants to take further action to enforce the EU’s Directive on employment of irregular migrants (on the implementation of this Directive, see discussion here).

Also, the Commission wants to address the issue of return, by prioritising countries of origin for readmission treaties with the EU, providing guidelines on the application of the EU Return Directive (see here on implementation of that Directive), and giving the EU Border Agency, Frontex, the power to initiate expulsion missions. The Commission will propose legislation on the latter issue on the basis of an evaluation to be completed by the end of the year.

Border management

Commission proposals here largely urge more implementation of existing EU rules. The only concrete initiative is a commitment to relaunch the EU’s ‘Smart Borders’ proposals, for an entry-exit system of non-EU nationals, by the start of 2016. But the Commission was planning to do this anyway.

Asylum

The second phase of EU legislation on asylum is partly applicable already: the ‘qualification Directive’ on the definition and content of refugee and subsidiary protection status should have applied from the end of 2013, and the ‘Dublin III’ rules on asylum-seeker responsibility applied from the start of 2014. The other revised rules, on the ‘Eurodac’ system, asylum-seekers’ reception and asylum procedures, apply from July 2015 already.

The Commission promises to focus on implementation of these laws, by issuing guidance documents and prioritising infringement procedures against Member States which do not apply the law properly. It will also review the Dublin system in 2016, and may suggest proposals to speed up processing in cases involving safe countries of origin.

Legal migration

The Commission supports a legal migration policy based on demographic needs to increase the working-age population in the EU. It will conduct a ‘fitness check’ of existing legislation, and encourages swift agreement on its proposal on students and researchers, which has nearly been agreed by the Council and EP (for analysis of this proposal, see here). Also, by the end of May, it will review the ‘Blue Card’ legislation on admission of highly-skilled migrants, referring particularly to attracting investors and increasing mobility between Member States (on implementation of the current law and the issues for reform, see here).

The Commission also suggests a new initiative, to adopt rules on the provision of services by non-EU citizens. There are already provisions on this issue in EU free-trade agreements, but the Commission wants standard rules for all non-EU citizens. An important point here is that these rules should at least in part apply to all Member States, since they concern international trade, an exclusive EU competence which is not subject to any opt-outs.  Arguably that exclusive competence applies to market access issues as distinct from the related immigration rules, where opt-outs should still apply, but this may need to be clarified.

Finally, the Commission refers to visa policy, namely its existing proposal to amend the EU visa code and its pre-existing plan to review the list of countries whose nationals require a visa.  It also suggests giving a modest amount of extra cash to third countries as regards migration management.

Long-term objectives

Without offering a data, the Commission outlines longer-term objectives in three areas. As regards asylum, it suggests that there could be a common code of EU asylum law, mutual recognition of asylum decisions, and a common decision-making process. It is not clear if the latter would involve the Commission or another EU body making asylum decisions, and/or a common court reviewing asylum appeals (following the model of the EU’s planned patent court).

Secondly, as regards border control, the Commission reiterates long-held goals of a common EU border guard, or at least a common coastguard.

Finally, as regards legal migration, the Commission suggests an EU-wide expression of interest system, so that people are applying to all Member States for a job, not just individual States.  

Comments

The Treaties refer to a ‘common’ EU policy on immigration, asylum and border control. But the Commission’s proposed agenda does not start from that final objective and ask itself what is necessary for the EU to achieve it. Rather it starts from the status quo and asks what incremental changes need to be made to it to address specific issues.

On the immediate question of addressing the migrant crisis, the strategy paper essentially implements what EU countries already agreed, apart from the relocation and resettlement proposals. The relocation proposals in particular are probably politically unrealistic, given that Member States over the years have repeatedly refused to adopt binding rules on this issue.

The resettlement proposals are less unreal, since the Commission plans to start with a non-binding measure backed up by extra EU money, which should attract Member States to offer resettlement opportunities. Only if that does not work would the Commission take the unrealistic step of proposing binding rules. This part of the plan is particularly welcome, since it would reduce the number of migrants in need of protection who undertake the unsafe journey to the EU in the first place. However, the numbers involved compared to the totals undertaking that journey are likely to be tiny: the Commission proposal of 20,000 a year by 2020 is modest enough (there were over half a million asylum applications in the EU last year) but is unlikely to be agreed by Member States.

On smuggling legislation, more could be done to exempt humanitarian activities clearly from the rules, but changing the law alone will not stop smugglers. On the other hand there are many legal, political and practical problems facing the EU’s plan to destroy migrant boats. The plan is opposed by the de facto authorities in Libya – the very people whom the EU has to work with to solve the conflict in Libya in the first place.

The plan as regards returns legislation is to make the current rules work more effectively, by agreeing more readmission treaties and carrying out more removal operations. But coupled with the plan to amend asylum law to fast-track assessment of applications from supposed ‘safe countries of origin’, there is a risk that people will be removed to unsafe countries before their need for protection has been properly assessed.

Also as regards asylum, there is a focus on applying existing rules. In principle, this could lead to a significant increase in the degree of harmonisation between Member States, since the second-phase asylum rules have eliminated a lot of the legal divergences that the earlier phase of EU asylum law provided for. However, it depends on the political will of the Commission, which has promised to enforce EU asylum law many times before – and failed to do so every time. There’s no detail of how the enhanced focus on infringement proceedings will work, and until there is, this looks like a promise the Commission is making with its fingers crossed behind its back.

As regards legal migration, more admission of highly-skilled migrants and service providers in areas of economic need would be useful, and admission of tourists, researchers and students could boost the EU economy. Some of the measures to this end are already under discussion. But the Commission makes a fairly weak commitment as regards the enforcement of other EU legislation on legal migration, given that (for instance) many non-EU citizens face barriers to family reunion, and the Commission reported in 2011 that EU laws on long-term residents are not properly applied by Member States.

Finally, the Commission’s long-term plans are interesting but plans along these lines (particularly as regards border guards) have been rejected before by Member States. A particular disappointment here is the failure to suggest early adoption of rules on the transfer of protection of refugees who move between Member States, given that some refugees already have the right to move between EU countries and there is an existing Council of Europe treaty setting out rules on this issue that the EU could use as a template (see the ECRE report on this issue).

On the whole then, the Commission strategy paper is largely a repackaging of things which the EU is already committed to doing or already negotiating, or which are already in place. It shouldn’t be necessary to adopt plans to enforce rules which are already the law, and the intention to do so simply exposes the previous failings of the Commission on this score. It remains to be seen if issuing ‘guidance documents’ has any useful effect in practice (the Commission should commit itself to an independent review of this), and the promises relating to infringement proceedings mean nothing until the Commission tells us what this means, and regularly and openly reports on its practice to this end. The plans for further legislation in the near future are essentially modest, but in places (fast-track asylum assessment and expulsions, directly to more countries of origin) raise serious potential human rights concerns. And the strategy paper concludes with the legal equivalent of a flock of flying pigs.

All this will ultimately lead to another series of modest steps forward toward a common EU policy on borders, immigration and asylum. But it falls short of the significant changes that could be made if there were enough political will in the Commission and the Member States.

 

Barnard & Peers: chapter 26

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Damages for breach of EU free movement law: an important Irish judgment

 

Steve Peers

It’s been well over twenty years since the CJEU established, in the case of Francovich, that individuals could sue Member States in damages for breach of EU law. Yet many of the cases concerned have been brought by businesses for lost profit. The CJEU has never had the opportunity to apply the principles relating to damages claims in a case concerning the free movement of EU citizens.

But in its recent judgment in Ogieriakhi, the Irish High Court delivered a ruling on this issue, awarding over €100,000 to the family member of an EU citizen for breach of EU free movement law. This judgment isn’t a precedent as such outside Ireland, but it is a useful indication of how such claims might be made. So I suggest below how it might be particularly relevant to some of the UK's current breaches of EU free movement law.

Background

The Irish judgment follows the CJEU’s ruling earlier last year in the same case (discussed here), which answered the High Court’s questions as regards substantive free movement law and damages issues. Mr. Ogieriakhi had been married to a French citizen in Ireland, then separated from her for several years while living with an Irish woman. Ultimately he got divorced from his French wife, married the Irish woman he had established a family with, and became an Irish citizen.

But in the meantime, he lost his job in the Irish post office, purely on the grounds that he was not legally entitled to be employed. He had been denied a renewed residence permit and had failed in his application to be considered a permanent resident on the basis of the EU citizens’ Directive, which awards that status to third-country national family members of EU citizens after five years’ legal residence.  

In light of developments in CJEU case law, he brought a claim for damages for loss of his job, which was the basis for the High Court asking the CJEU to clarify the substantive free movement law and damages issues. The CJEU ruled, following prior case law, that (a) third-country national family members of EU citizens still had free movement rights as long as the marriage was not formally dissolved, and (b) permanent residence could be acquired on the basis of time spent entirely before the deadline of 30 April 2006 to apply the EU citizens’ Directive, which created the notion of permanent residence. The Irish implementation of the Directive had taken a more restrictive approach on the latter point.

The national judgment

The CJEU judgment makes clear that Mr. Ogieriakhi was entitled to permanent residence status. However, while this will be relevant by analogy in similar cases, it was no longer directly relevant to his immigration status, since the Irish government had awarded him not only permanent residence but also citizenship in the meantime. On the other hand, it was very relevant to his claim for damages.

The High Court judge, Gerard Hogan, applied the EU law principles relating to damages. Mr. Ogieriakhi had to show that: the EU rules conferred rights upon him; the breach of EU law was sufficiently serious; and there was a direct causal link between the breach of EU law and the damages suffered. The CJEU judgment in this case had clarified one aspect of the second point: the mere fact that the national court had asked the CJEU for interpretation of EU law did not as such mean that the breach of EU law was not sufficiently serious.

Applying the principles in turn, the permanent residence rules in the citizens’ Directive aimed to confer rights on individuals. On the second point, the case law of the CJEU on damages says that there must be a manifest and grave disregard of the limits of Member States’ discretion, considering the clarity and precision of the rule breached, the degree of discretion left to Member States, whether the breach was intentional or excusable, the position of EU institutions and the existence of prior case law of the CJEU on the issue. A continuation of national breaches of EU law after a CJEU judgment will always constitute a sufficiently serious breach. In this case, Judge Hogan ruled that: the EU legislation was clear and precise; there was no national discretion; and the breach was not excusable, even though the CJEU did not confirm that pre-2006 periods of residence counted until 2010, since this should have been clear enough from the wording of the Directive. Finally, it was clear on the facts that Mr. Ogieriakhi only lost his job due to the breach of EU law.  

The judge then had to assess the amount of damages payable. Mr. Ogieriakhi had been unable to find work in the difficult economic climate in Ireland, and so was able to claim for several years’ lost wages. To a limited extent, he had failed to mitigate his losses, and so the award was reduced a little as a consequence. The final result was six years’ lost wages, amounting to €107,905, along with a further €20,000 for breach of Irish constitutional law (right to a good name).

Comments

This judgment shows how significant EU law can be in individual cases, in particular in the area of free movement of people. €127,000 is a small sum for a large corporation but a substantial amount for people of modest means, like the Ogieriakhi family. Moreover, Mr. Ogieriakhi doesn’t have to share any of this sum with lawyers, since he represented himself (congratulations to him for his success – and to those in Ireland who obviously taught him EU law very well). Of course, the award shouldn’t be regarded as an unjustified windfall, since it mostly constitutes money that Mr. Ogieriakhi would have earned if he had not been unlawfully dismissed due to breach of EU law.

What are its broader implications? Let’s examine them by applying this case to two other EU free movement issues: the position of EU citizens who move to another Member State to be with their family members, and then seek to return to their own Member State with their family; and the position of those who wish to visit the UK with their third-country national family members, without obtaining a visa.

For the first category of people (often known as Surinder Singh cases), the CJEU clarified last spring (as discussed here) that in principle it should be sufficient for them to spend three months in another Member State exercising free movement rights with their family members.  Then they could return to their home state. The CJEU judgment concerned a Dutch case, and I don’t know what the consequences have been in the Netherlands. But the UK government has continued to apply a ‘centre of life’ test that seems to be clearly more restrictive than the test in the Court’s judgment.

For the second category of cases, the CJEU ruled in December in McCarthy(discussed here) that the family members should not have to obtain a visa, if they had a residence card in their country of origin issued to family members of EU citizens. This was a UK reference, but the UK courts have not followed it up yet. Nor has the UK government changed its practice, as far as I know.

So let’s apply the EU damages principles to these two breaches of EU law. In the first case, the right to return to the UK is based on the Treaty rules on free movement of people, which clearly aim to confer rights on individuals. Any delay in returning to the UK with family members is in principle caused by the UK’s wrongful application of EU law, although there might be other reasons in individual cases why people delayed their return (finding work back in the UK, finishing school years, and so on). As for the ‘sufficiently serious’ requirement, it is clearly met since the Court’s ruling last year, but it harder to argue that it applied before that date, due to the lack of legislation on this issue and the lack of clarity before the Court’s judgment. The calculation of damages due to the UK’s breach of EU law will depend on each case, and it might be harder in many cases to show losses as compared to the Ogieriakhijudgment, where the total absence of work was solely attributable to breach of EU law, and the resulting damages were fairly easy to calculate.

In the second case, the right to visit the UK without a visa is clearly a rule intending to confer rights on individuals. Any costs incurred to get a visa (mainly travel to a consulate) are clearly directly attributable to the breach of EU law by the UK. The breach of EU law is sufficiently serious since the McCarthyjudgment, but in this case it is arguably sufficiently serious beforehand. It is blatantly obvious from the wording of the citizens’ Directive that third-country national family members with a residence card do not need a visa, and there is no provision in the Directive for the UK practice of requiring a family permit as a separate requirement for a visa exemption. Equally it was clear from prior CJEU case law that the concept of ‘abuse of rights’ could only apply in individual cases.

As always on this blog, the suggestions above do not constitute legal advice, and anyone considering legal action should consult a lawyer (unless they are sure that they can represent themselves as well as Mr. Ogieriakhi did). I don’t practice law, so this isn’t an attempt to drum up work for myself. Rather my concern is not only for the individuals who ought to be compensated for the losses caused by the illegal actions of the UK, but also for the broader principle of the rule of law. It simply is not acceptable for the UK government to flout its legal obligations as long as it has, and the more legal proceedings aiming to pressure it to comply with those obligations, the better.

 

Barnard & Peers: chapter 6, chapter 13

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Two Codes to rule them all: the Borders and Visa Codes

Steve Peers

In today’s judgment in Air Baltic, the Court of Justice of the European Union (CJEU) has taken the next logical step following its judgment late last year in Koushkaki, where it ruled that the EU’s visa code set out an exhaustive list of grounds for refusing a visa application.  Today the Court has confirmed that the same is true of the Schengen Borders Code. Moreover, the Court has clarified a number of general and specific points about the nature and interpretation of the two codes.

Facts and judgment

This case concerned an Indian citizen who flew from Moscow to Riga. He had a valid multiple-entry Schengen visa, which was attached to a cancelled Indian passport. He also had a second Indian passport, which was valid but which did not contain a visa. The Latvian border guards then refused him entry into Latvia, on the grounds that the valid visa had to be attached to the valid passport, not to the cancelled passport.

For good measure, the Latvian authorities also fined the airline, Air Baltic, for transporting him without the necessary travel documents. The airline appealed the fine, and lost at first instance. But an appeal court then sent questions to the Court of Justice to clarify the legal position.

The CJEU ruled first of all that the cancellation of a passport by a third country did not mean that the visa attached to the passport was invalid. This was because only a Member State authority could annul or revoke a visa, and because the visa code did not allow for the annulment of a visa in such cases anyway. The Court extended its ruling in Koushkaki to confirm that the grounds for annulling a visa were exhaustive; the same must be true of the grounds for revoking a visa.

Secondly, the Court ruled that the Schengen Borders Code did not require entry to be refused in cases like these. The different language versions of that code suggested different interpretations, but as always, the Court seeks a uniform interpretation of EU law regardless. In this case, the standard form to be given to persons who were refused entry at the border to explain why they were refused does not provide for refusal on the grounds that a valid visa was not attached to a valid passport.

Also, the Court pointed out that the idea of separate visas and passports was not unknown to EU law, since the visa code provides that in cases where a Member State refuses to recognise a passport as valid, a visa must be issued as a separate document. Checking two separate documents was not a huge burden for border guards, and refusing entry simply on the grounds that the valid passports and visas were in two separate documents would infringe the principle of proportionality.

Finally, the Court ruled that the national authorities of Member States do not have any residual powers to refuse entry to third-country nationals on grounds besides those listed in the Schengen Borders Code. The Court reached this conclusion, by analogy with Koushkaki, because: the standard form giving the grounds for refusing entry contains an exhaustive list of grounds for refusal; the nature of the Schengen system ‘implies a common definition of the entry conditions’; and this interpretation would support ‘the objective of facilitating legitimate travel’ referred to in the preamble to the visa code.

Comments

The Court’s ruling that the Schengen Borders Code provides for complete harmonisation of the rules on refusal of entry is not really surprising, particularly after the judgment in Koushkaki reaching the equivalent conclusion regarding the visa code. However, it should be noted that in today’s judgment, the Court does not repeat its qualification in Koushkakithat national authorities had wide discretion to interpret the common rules in question. Furthermore, the Schengen Borders Code is relevant not only to those third-country nationals who need visas for entry, but also those who do not, such as visitors from the USA, Canada and most of the Western Balkans.

In effect, the Court’s ruling confirms that the Schengen zone is in effect the equivalent of the EU’s customs union, as regards the movement of people. Of course, the customs union and the Schengen zone do not apply to the same countries, due to opt-outs from Schengen (UK and Ireland), the deferred admission to the Schengen system (Romania, Bulgaria, Cyprus and Croatia), and the rules on association with each system (Turkey is part of the EU’s customs union, while Norway, Iceland, Liechtenstein and Switzerland apply the Schengen rules). But the basic concept is the same, with the obvious implications as regards exclusive external competence of the EU (although a Protocol to the Treaties conserves some external competence over borders for Member States), and uniform interpretation of the rules in the respective codes.

As to the more detailed aspects of this case, the Court is surely right to rule against the pedantry of insisting that where a person holds a valid visa and a valid passport, the visa must always be attached to the passport. The underlying objective to ensure that the person concerned meets the conditions of entry is satisfied regardless of whether the visa is attached to the passport or not. Also, the Court’s ruling that the Borders Code has to be interpreted in accordance with the principle of proportionality, and in light of the objective of facilitating legitimate travel, could have broader implications in other cases.

Finally, the necessary corollary of the judgments in Koushkaki and Air Baltic is that a third-country national who meets the conditions to obtain a visa and/or cross the external borders has the right to that visa and/or to cross those borders. So these issues are not governed by national administrative discretion, but by uniform EU rules. The strengthening of the rule of law in this field is very welcome.

Barnard & Peers: 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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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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Simplifying applications for Schengen visas for third-country national family members of EU citizens: do the new proposals go far enough?

Steve Peers

For many EU citizens whose family members are third-country nationals, particularly if those family members are citizens of an Asian, African or Caribbean country, free movement isn’t as free as it is for others. Unless they are travelling between Schengen countries (as explained below), those EU citizens who wish to visit another Member State with their third-country national family members may have to obtain a visa for their family members first, which can complicate their travel significantly.

This situation would be ameliorated somewhat, if the two proposals regarding visas issued today by the Commission are adopted. One of these proposals would amend the existing rules relating to ‘Schengen visas’, which allow for travel to all Schengen states for a period of three months (ie the EU’s ‘visa code’). The second proposal would create a new ‘touring visa’ for travel for up to one year to Schengen countries. While the proposals have of course not yet been adopted, and may be amended (or not adopted at all) as they go through the EU’s legislative process, they are significant enough to merit some analysis at this early stage.

In fact, these proposals are complex and important enough to merit four separate posts. This first post examines the proposed new rules for third-country national family members of EU citizens. The other three will examine: the visa code proposal; the touring visa proposal; and the important issue which isn’t addressed in these proposals: a protection visa for those fleeing persecution or serious harm.

EU free movement and Schengen compared

First of all, it’s necessary to reiterate which countries are covered by EU free movement law, on the one hand, and Schengen on the other.

The free movement rules, as set out in Directive 2004/38 (the ‘citizens’ Directive’) apply to all Member States, in the context of the citizenship of the EU. They also apply to Norway, Iceland and Liechtenstein, since the citizens’ Directive was extended to those countries pursuant to the treaty establishing a European Economic Area (EEA). The EU also has an agreement on free movement of persons with Switzerland, but that treaty does not apply the citizens’ Directive as such to Switzerland.

The Schengen rules, which abolish internal border checks between the signatories and introduce common rules on external border control and short-term visas, currently apply to 22 Member States, along with Norway, Iceland, Liechtenstein and Switzerland (the ‘Schengen associates’).

The Member States not applying the Schengen rules fall into two categories. On the one hand, the UK and Ireland do not apply Schengen at all (except for a number of flanking rules relating to police cooperation). On the other hand, Romania, Bulgaria, Cyprus and Croatia are obliged to apply all Schengen rules in principle, and do apply some of them (such as the external border rules and the common list of States whose nationals do or don’t need a visa), but do not yet apply all of them. More precisely, the Schengen rules on abolition of internal border controls, including the rules on Schengen visas, will not apply until the other Schengen States unanimously agree that Schengen should be extended to each of these countries.

It should be noted that the UK and Ireland won’t have any vote on the Commission’s new proposals, while the other four States not yet applying the Schengen rules will (given that they will have to apply those rules eventually). For simplicity’s sake, I’ll refer to the latter group of four States as ‘Romania, et al’, and to all six States not currently applying Schengen as ‘non-Schengen States’.

The cross-over between these two regimes is particularly important as regards third-country national (ie, non-EU) family members of EU citizens. They have the right to move and reside freely with their EU citizen family members in other Member States. As regards short-term visa requirements, though, it matters a great deal whether they are living and travelling within the Schengen states or not. Within the Schengen area, they do not need a visa to travel, even if they are not travelling with the EU citizen whom they are related to, because Schengen rules allow any third-country nationals with a residence permit or long-stay visa to travel between Member States. However, if they are travelling from Schengen States to non-Schengen states, or vice versa, or between non-Schengen States, they are subject to rules on visas and border controls.

There are, of course, special rules as regards travel between the UK and Ireland, known as the Common Travel Area, but there’s no need to consider those rules here. Also, since the Commission’s new proposals only relate to Schengen visas, there’s no need to consider here the issues relating to border controls.

 If the third-country national family members of EU citizens seek to enter the UK and Ireland, they are subject to national law, along with the citizens’ Directive. If they seek to enter the Schengen area, they are subject to both the Schengen rules and the citizens’ Directive. If they seek to enter Romania et al, they are subject to national law, subject to the citizens’ Directive and certain aspects of the Schengen rules (the common rules on border controls and visa lists – but not the Schengen visa rules).

All Member States are subject to the citizens’ Directive, so it’s important to examine its provisions first. First of all, in principle third-country national family members of EU citizens have the right to enter the territory with their EU citizen family member (Article 5(1)). They might, however, need a visa (Article 5(2)). Whether they need one or not is determined by national law (as regards the UK and Ireland) or by the EU visa list (as regards the other Member States, including Romania et al). So if a British citizen wishes to visit the Schengen area with her American husband, the husband will not need a visa, because the USA is on the Schengen ‘whitelist’ of states whose nationals don’t need visas. But conversely, if an Irish citizen wishes to visit the Schengen area with his Indian wife, she will need one.

Next, Member States must also exempt from the visa requirement those third-country national family members of EU citizens who hold a special ‘residence card’ issued by another Member State. The exact interpretation of this rule is at issue in the pending McCarthy case, which the CJEU recently heard.

However, the issue affected by today’s proposals is not whether a visa is necessary or not in the first place, but the process which applies in the event that it is. On that point, the citizens’ Directive also states that the family members concerned must have ‘every facility’ to obtain such visas, which shall be ‘free of charge’ and issued on the basis of an ‘accelerated procedure’. There is no further explanation of these concepts in the Directive, but the Commission has now sought to clarify them in the proposal to amend to visa code – to which we now turn.

The visa code proposal

As a general point, the Commission suggests an important clarification of the rules, to specify throughout that the ‘family members’ of EU citizens covered by the visa code are all family members referred to in Article 3 of the citizens’ Directive. This would confirm that these rules would apply not only to the ‘core’ family members (essentially spouses, formal partners, children and parents) referred to in Article 3(1), but also to extended family members referred to in Article 3(2).

This clarifies a point which is ambiguous in the citizens’ Directive: whether the rules on visas (and, in fact, most of the other rules in the Directive) apply to extended family members as well as core family members. True, there is no absolute obligation to admit extended family members, but that does not necessarily mean that they cannot benefit from the rules in the Directive (such as access to employment) if they are admitted, in the same way as core family members. Indeed, in the Commentary on the EU Citizenship Directive, my co-authors and I have argued in detail that they do. At least as regards visas for admission into the Schengen area, this point would be clear.

Substantively, the first rule in the proposal regarding third-country national family members of EU citizens is that they cannot be subject to the requirement to hold a transit visa (Article 3(8); all Article numbers refer to the proposal, not the current version of the visa code). Actually, this provision isn’t new, as it already appears in the current visa code.

The second rule in the proposal is new: it concerns appointments at consulates. Third-country national family members of EU citizens would not need a prior appointment, or could get an immediate appointment (Article 8(4)). Next, there is a simplified rule for the presentation of documents relating to third-country national family members of EU citizens (Article 13(3)). The proposal would also expressly waive the visa application fee for such persons (Article 14(3)), although this simply repeats the wording of the citizens’ Directive. Finally, there are faster deadlines (5 days, with a 10-day maximum) to decide upon the applications of such persons.

However, it should be noted that not all rules are waived or relaxed. Third-country national family members of EU citizens will not be exempt from the fingerprinting requirement, or from having their names and personal data entered into the EU’s Visa Information System. The Commission does not suggest that they should be entitled to a multiple-entry visa as such (Article 21), although that would go a long way toward simplifying their travel to other Member States, which is the essence of free movement. It is arguable that being a family member of an EU citizen would help to satisfy the criteria for obtaining a multiple-entry visa, but it would have been better to provide for this automatically, in all cases, subject to the condition that the person concerned is accompanying an EU citizen.

Even more problematically, the proposal does not expressly exempt the third-country national family members of EU citizens from the substantive rules on the criteria for issuing a visa (Article 19). This is surprising given that the Commission’s own report on the application of that Directive stated that some Member States were wrongly applying the general rules in the visa code to visa applications by third-country national family members of EU citizens. While of course the rules in the citizens’ Directive take precedence, it would be better to refer to them expressly to ensure correct application, just as the proposal expressly includes that Directive’s rules on visa application fee exemptions.

Nor is there any express rule allowing for the issue of a visa at the border (Article 32) – even though this directly contradicts the judgment of the CJEU in the MRAX case.

EU free movement law and ‘touring visas’

The separate proposal on ‘touring visas’ contains no express rules for third-country national family members of EU citizens, other than the general reference to the priority of the free movement rules (Article 1). From one point of view, this is sufficient, since those third-country national family members of EU citizens who wish to visit a series of other Member States (whether those States are Schengen States are not) are entitled to do so if they are accompanying or joining their EU citizen family member, and indeed to do so indefinitely (not for a one-year maximum), as long as they meet the liberal conditions of the citizens’ Directive. From another point of view, however, it would be useful to clarify, for the sake of legal certainty, that those family members cannot be subject to work permit requirements as referred to in the proposal, given that Article 23 of the citizens’ Directive gives the third-country national family members of EU citizens the right to work in any Member State in which they are accompanying or joining their family member.

General points

First of all, there might be an argument over the ‘legal base’ of these proposals, as regards the inclusion of specific rules on third-country national family members of EU citizens. In the Metock judgment, the CJEU said expressly that the Treaty provisions on EU free movement law constituted the correct legal base for regulating the position of third-country national family members of EU citizens. It might possibly be arguable, however, that the EU competence relating to visas could be used to provide for additional detailed rules on this issue, as long as they do not conflict with the rules adopted on the basis of EU free movement law.

Secondly, the inclusion of specific rules on these issues in the visa code risks an a contrario argument being made in the non-Schengen states, to the effect that they are not bound by these rules, since they are not bound by the visa code. But they are certainly bound by the specific obligation to waive visa fees, and by the more general obligation to expedite applications by third-country national family members of EU citizens, since those obligations appear in the citizens’ Directive.


Barnard & Peers: chapter 26

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Is the European Union an ideal worth dying for? Thoughts on the future of Ukraine and the EU

Steve Peers

Undoubtedly there were many reasons to find fault with the Yanukovych government of Ukraine, but the catalyst for start of the protests which ultimately brought his government down was his refusal to sign an association agreement with the European Union. Some of the protesters killed last week were even flying the Union flag. Let's assume that fresh elections are held, as planned, in the near future (on the same day as the European Parliament elections) and result in a pro-European government. In that case, this apparently strong enthusiasm of a proportion of the Ukrainian population for joining the European Union will raise fundamental questions about the Union's future.

The initial steps following the election will be relatively easy. First of all, the association agreement will be quickly signed and ratified. This treaty goes much further to link Ukraine to the EU's legal order than the prior Europe Agreements (with Central and European countries) did, and the current Stabilisation and Association Agreements (with the Western Balkans) do. In particular, it contains an enormous list of specific EU laws which Ukraine must comply with by certain dates.

Another potential 'early harvest', which would be very popular with the Ukrainian population, would be the abolition of the visa requirement for Ukrainians to visit the EU. There is already a process to this end set up between the EU and Ukraine, and it could certainly result in a successful result in the near future if there is enough effort on the Ukrainian side - as the examples of the Western Balkans and Moldova prove. Various other treaties on specific issues could also be agreed between the EU and Ukraine. Yet I doubt if this will be enough.

The Copenhagen and Thessaloniki declarations, which set out the EU's clear willingness to admit the countries of (respectively) Central and Eastern Europe and the Western Balkans if the relevant conditions are met, have formed the core of the EU's relations with the countries concerned since their adoption. The realistic promise of EU membership for these countries formed the basis of broad and stable political support for widespread economic and political reform.Of course, in some cases, the promise of possible EU accession is not enough to overcome a country's manifold problems, as the example of Bosnia and Hercegovina shows. But it is hard to see how that country would be better off without that promise.

Indeed, the recent history of Ukraine arguably shows that the absence of a commitment by the Union to admit the relevant country in principle potentially weakens the pro-reform forces politically. Following the Orange Revolution of 2004, the EU would not commit to possible enlargement, suggesting instead the close association agreement which has since been negotiated, and pro-reform forces faced difficulties ever since. Of course, the EU's lack of enthusiasm for Ukrainian membership cannot have been the only reason for those difficulties. But again, the pro-reform forces would surely have been better off if that commitment had been made. You cannot build broad and stable political support for widespread economic and political reform around the goal of EU membership when the EU palpably doesn't want your country to join.

So this time, should the EU make a genuine commitment to admit Ukraine if the conditions are right? On the one hand, Ukraine fits the geographic criteria for membership, and has various historical, cultural and linguistic links with current Member States. It's very diverse, and its borders are historically arbitrary, but the same could be said of other Member States (and non-Member States too). If the political and economic circumstances there change, the potential accession process could always be put on hold for as long as necessary, as it has been in Bosnia and Hercegovina. Its accession would be of major strategic importance for the EU, significantly limiting Russia's sphere of influence in Europe.

On the other hand, the Union's elites and its population clearly have 'enlargement fatigue', and Ukraine is bigger, poorer and potentially more volatile than most of the countries which have joined in recent years. The weeks leading up to a European Parliament election are not an ideal time for politicians to consider making such a brave political commitment.

How can these conflicting considerations be reconciled? The Union has gone as far as it can in terms of developing a close association with Ukraine, in the form of the association agreement which will likely soon be signed. More protocols could be added to this treaty, but that would miss the point: pro-reform forces in Ukraine need a concrete commitment to EU membership as an anchor to build broad support for a significant programme of political and economic reform.

What the Union needs, then, is not a new form of association: it is very good at coming up with them, but that won't be sufficient in this case. What it needs instead is a new form of membership. Let's call it 'associate membership' (although that term is bound to be confused in practice with mere association) for convenience's sake.

An associate member would be legally a member of the EU, with many of the rights and obligations of EU membership, but not all of them. For instance, addressing one of the biggest public concerns in current EU Member States, the free movement of people would not fully apply. This is different from the transitional period for free movement of workers that has applied to many EU enlargements, in that there would be no fixed end date for the limitations concerned. Indeed, there would be no legal commitment to admit the country concerned as a full member of the EU, leaving that possibility subject to the current system for agreeing accession of new Member States.

This new possibility need not be confined to Ukraine: it could also be used for Western Balkan states, Turkey and other eastern neighbourhood countries. Indeed, it could also be used for existing Member States which may wish to scale back their current degree of membership in the EU without leaving it altogether. The United Kingdom would be the most obvious candidate for such a change of status, participating perhaps in a 'common market' version of associate membership.

Of course, the associate members could not expect to vote on EU measures which did not apply to them yet (again differentiating them from new full Member States), including any Treaty amendments that did not apply to them. Difficult issues would arise as regards their participation in EU institutions, but these could surely be solved if the political will were present.

Undeniably, this new form of EU membership could only be introduced by way of Treaty amendment, and many Member States dread starting the Treaty amendment process. But, if the political will were there, it would need only a minor amendment to the Treaties to provide for the existence of the new concept, with the details to be worked out in the treaties with the countries concerned, supplemented perhaps by a general legal framework governing the new form of EU membership (to be adopted by the Council or European Council by unanimity, with the consent of the European Parliament). This Treaty amendment could be severed from other possible Treaty amendment issues, reducing the political difficulties in negotiating and ratifying Treaty changes.

Back in 1989, the European Union responded quickly and fully to the end of the Cold War, putting in place a framework for enlargement that ultimately led to the reunification of much of the continent within the EU's legal order. The passion and enthusiasm of pro-European Ukrainians, as well as the Union's need to think creatively about ways to address its relative decline of influence in regional politics, suggest that the time is ripe to create a new form of membership in the European Union.


Barnard & Peers: chapter 2, chapter 24

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Do potential asylum - seekers have the right to a Schengen visa?

By Steve Peers

In its recent judgment in Koushkaki, the Court of Justice clarified some key questions regarding the process of applying for a Schengen visa, in effect ruling that applicants have a right to a visa if they meet the necessary conditions. In doing so, it implicitly raised further questions about the grounds to refuse visa applications made by potential asylum-seekers.

The judgment

Mr. Koushkaki, an Iranian citizen living in Iran, applied to the German authorities for a Schengen visa to vist Germany. The German authorities refused, on the grounds that he did not have proof of subsistence for his stay or return. These are among the conditions for entry set out in the Schengen Borders Code, and also apply to the issue of Schengen visas under the EU visa code.

So Mr. Koushkaki applied again, this time explaining that he wished to visit his brother, who resided in Germany after obtaining asylum there. This second application was again rejected, this time on the grounds that Mr. Koushkaki had not shown an intention to return. Mr. Koushkaki challenged this decision, and the national court, believing that the authorities had refused Mr. Koushkaki on grounds not referred to in the visa code, asked the Court of Justice (inter alia) whether Mr. Koushkaki had the right to a visa if the conditions in the code were satisfied and none of the grounds for refusal listed in the code were applicable.

The Advocate-General took the firm view that there was no right to a Schengen visa, but the Court took a different approach. It reworded the national court's main question, answering instead the question whether the list of grounds for refusal of a visa set out in the Code was exhuastive. In the Court's view, the list was exhaustive, taking account of the wording, context and objectives of the Code.

First of all, the wording of the Code was ambiguous. Secondly, the context included: a reference to only those grounds for refusal listed in the code; a standard form for giving reasons for a rejection of a visa application which provided for no other reasons for refusal besides those listed in the Code; the wording of the legislation establishing the Visa Information System; and the link between the grounds for refusal of a visa application and the grounds for revocation or annulment of a visa which has already been issued. Since a Member State can annul or revoke a visa issued by another Member State, this presupposed that the 'conditions for the issue of uniform visas are harmonised', so there could be no differences between Member States as to the grounds to refuse a visa.

As for the objectives of the visa code, the preamble to the code states that it aims to 'establish the conditions for the issue of uniform visas'. Also, the preamble refers to 'the facilitation of legitimate travel', which would be jeopardised if Member States could add their own grounds for refusal of a visa application. So would the objective of 'preventing different treatment of visa applicants', also referred to in the preamble. Such variations in national practice would also encourage 'visa shopping', ie applications being to the Member State with the most favourable rules (leading to what a labour or company lawyer would call a 'race to the bottom').

Having said that, the CJEU did emphasise that Member States' authorities had a lot of discretion in applying the standard criteria. They have to consider the 'personality of the applicant', his or her integration in the country of origin, the 'political, social and economic situation of that country' and the possible threat to public policy, internal security, public health or international relations of the Member States. Some of these factors are not, in fact, expressly referred to in the visa code.

The Court of Justice then addressed the national court's other questions. It clarified that there need only be 'reasonable doubt', not certainty, that an applicant had the intention of leaving the country when the visa expired, and spelled out the criteria which had to be taken into account. Finally, it required the national court to interpret national law consistently with the judgment, even though that national law provided for residual discretion to refuse visa applications.

Comments

The Court's judgment is surely relevant by analogy to applications for most of the various forms of short-stay visa referred to in the visa code: airport transit visas, multiple-entry visas and visas with limited territorial validity. It is doubtful whether it applies to the issue of visas as the border, since the code says that such visas 'may' be issued if the relevant conditions are met. More obviously, the judgment is relevant by analogy to the Schengen Borders Code, given the similar wording and context of the rules on refusal of entry in the latter code, along with the use of a similar standard form to give reasons to refused applicants.

It is also arguable that the judgment applies by analogy to some or all of the EU's legal migration legislation: indeed the same German court has sent questions to the Court of Justice on exactly this point, as regards the students' Directive (Ben Alaya).

On the key question of the 'right' to a Schengen visa, the Court's ruling is welcome and its reasoning is convincing, in light of the structure and objectives of the visa code. It is notable that the Court sets out its ruling in technical language, referring to the exhaustive nature of the list of grounds for refusal, rather than a 'right to a visa'. But this is a distinction without a difference: national authorities must nonetheless issue the visa if the conditions are satisfied. As Mary Poppins might say, the different wording is simply a 'spoonful of sugar' to help the national authorities accept the Court's ruling.

Anyway, as the CJEU makes clear, those authorities have a lot of discretion left when they apply those criteria. As noted above, some of the factors referred to by the Court are not referred to in the Code. In particular, assessment of the applicant's 'personality' surely requires a psychiatrist, but it is doubtful that many consulates employ any of them.  

The position of potential asylum-seekers

According to the United Nations (Geneva) Convention on refugee status, a person cannot be considered a refugee until he or she is outside the country of origin. But of course a person fearing persecution on Convention grounds (or needing subsidiary protection) might well apply for a visa with the intention of leaving the country of origin in order to apply for asylum in the country which issues the visa.

On the facts of the Koushkaki case, it is strking that when Mr. Koushkaki mentioned that his brother had obtained asylum in Germany, the German authorities refused his application for a visa on the grounds that he had not proved his intention to return. Since Mr. Koushkaki might be assumed to have had life experiences comparable to his brother's, the national authorities might well have feared that he intended to apply for asylum in Germany. (Incidentally, the Dublin rules would have allocated Germany responsibility for his claim, if the German authorities had given him a visa).

Can potential asylum-seekers rely on this ruling to insist on the right to a Schengen visa? The key problem is that they do not have an intention to leave the country which might issue the visa to them. They would need to offer enough evidence that they do have such an intention to dispel any reasonable doubts of the national authorities. While such evidence might not be offered honestly, Article 31 of the Geneva Convention implicitly makes clear that the need to flee persecution justifies breaches of immigration law.

While Article 21(1) of the visa code refers to a need to decide whether an applicant presents a 'risk of illegal immigration', this clause should not be used against potential asylum-seekers, since they have the right to stay in the territory (subject to the conditions in the asylum procedures Directive), and the case-law of the CJEU on the Returns Directive confirms that they cannot be considered to be irregular migrants.

Potential asylum-seekers would also have to meet the other relevant conditions, such as holding a valid travel document, having subsistence, and not being listed on the Schengen Information System. For many, these conditions will be hard to fulfil.

However, as suggested above, following Koushkaki it could be argued that Member States are obliged to issue a visa with limited territorial validity (ie valid in one Member State only: this is good enough for an asylum-seeker to flee persecution, provided that the Member State concerned complies with its obligations towards asylum-seekers).  Such visas 'shall' be issued if the Member State 'considers it necessary on humanitarian grounds, for reasons of national interest or because of international obligations', to derogate from the rules in the Schengen Borders Code (among other things). Arguably the binding nature of the relevant international obligations, along with the EU Charter of Fundamental Rights and the use of the word 'shall', override the discretion suggested by the words 'consider it necessary'.

If this argument is correct, then the Koushkaki judgment has opened a significant crack in the wall of 'Fortress Europe' for would-be asylum-seekers.


Barnard & Peers: chapter 26

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