by Steve PEERS

Due to my concern about inadequate democratic scrutiny of changes to UK law (often linked to EU law) affecting privacy rights, I am one of the signatories to today’s letter to MPs on this issue, published in the Guardian and elsewhere. Thanks to Andrew Murray and Paul Bernal for taking this initiative.

An open letter to all members of the House of Commons,

Dear Parliamentarian,

Ensuring the Rule of Law and the democratic process is respected as UK surveillance law is revised

Actions Taken Under the Previous Government

During the past two years, the United Kingdom’s surveillance laws and policies have come under scrutiny as the increasingly expansive and intrusive powers of the state have been revealed and questioned in the media. Such introspection is healthy for any democracy. However, despite a need for transparency in all areas of lawmaking, and in particular in areas of controversy, the previous Government repeatedly resisted calls for an open and transparent assessment and critique of UK surveillance powers. Instead, in response to legal challenges, it extended the powers of the state in the guise of draft Codes of Practice and “clarifying amendments.” As we welcome a new Government we expect another round of revisions to UK surveillance laws, with the likelihood that the Queen’s Speech will signal a revival of the Communications Data Bill. At this time we call on the new Government, and the members of the House, to ensure that any changes in the law, and especially any expansions of power, are fully and transparently vetted by Parliament, and open to consultation from the public and all relevant stakeholders.

Last year, in response to the introduction of the Data Retention and Investigatory Powers Bill (“DRIP”), a number of leading academics in the field – including many of the signatories to this letter – called for full and proper parliamentary scrutiny of the Bill to ensure Parliamentarians were not misled as to what powers it truly contained. Our concern emanated from the Home Secretary’s attempt to characterize the Bill, which substantially expanded investigatory powers, as merely a re-affirmation of the pre-existing data retention regime.[1]

Since that letter was written, it has become apparent that the introduction of the DRIP Bill was not the only time an expansion of surveillance powers was presented in a way seemingly designed to stifle robust democratic consideration. In February 2015, the Home Office published the draft Equipment Interference Code of Practice.[2] The draft Code was the first time the intelligence services openly sought specific authorisation to hack computers both within and outside the UK. Hacking is a much more intrusive form of surveillance than any previously authorised by Parliament. It also threatens the security of all internet services as the tools intelligence services use to hack can create or maintain security vulnerabilities that may be used by criminals to commit criminal acts and other governments to invade our privacy. The Government, though, sought to authorise its hacking, not through primary legislation and full Parliamentary consideration, but via a Code of Practice.

The previous Government also introduced an amendment via the Serious Crimes Act 2015, described in the explanatory notes to the Bill as a ‘clarifying amendment’.[3] The amendment effectively exempts the police and intelligence services from criminal liability for hacking. This has had an immediate impact on the ongoing litigation of several organisations who are suing the Government based in part on the law amended, the Computer Misuse Act 1990.[4]

The Way Ahead

The new Conservative Government has announced its intention to propose new surveillance powers through a resurrection of the Communications Data Bill. This will require internet and mobile phone companies to keep records of customers’ browsing activity, social media use, emails, voice calls, online gaming and text messages for a year, and to make that information available to the government and security services. We also anticipate this Parliament will see a review of the Regulation of Investigatory Powers Act 2000, which currently regulates much of the Government’s surveillance powers. The Independent Reviewer of Terrorism Legislation, David Anderson QC, has conducted an independent review of the operation and regulation of investigatory powers, with specific reference to the interception of communications and communications data. The report of that review has been submitted to the Prime Minister, but has yet to be made public: when it is made public, parliamentary scrutiny of the report and any recommendations made following it will be essential.

As the law requires that surveillance powers must be employed proportionate to any harm to privacy caused (as required by Article 8 of the European Convention on Human Rights and Article 12 of the Universal Declaration of Human Rights) we believe that any expansion or change to the UK’s surveillance powers should be proposed in primary legislation and clearly and accurately described in the explanatory notes of any Bill. The Bill and its consequences must then be fully and frankly debated in Parliament. When reaching an assessment of the proportionality, of any measure that restricts rights, both our domestic courts and the European Court of Human Rights place great stock on the degree and quality of Parliamentary involvement prior to any measure being adopted. If the matter ever came to before the courts one issue examined would be the nature of any “exacting review” undertaken by MPs into the necessity of extending these powers. The Government should not be permitted to surreptitiously change the law whenever it so desires, especially where such changes put our privacy and security at risk.

This letter has been prepared and signed by 35 academic researchers. We are comprised of people from both sides of this issue – those who believe that increased powers are a reasonable response to an emerging threat, and those who think them an unjustified extension of state interference. Our common goal is to see the Rule of Law applied and Parliamentary oversight reasserted. We are calling on all members of the House of Commons, new and returning, and of all political persuasions to support us in this by ensuring Parliamentary scrutiny is applied to all developments in UK surveillance laws and powers as proposed by the current Government.



Andrew Murray (contact signatory) Paul Bernal (contact signatory)
Professor of LawLondon School of Economics

Lecturer in Information Technology, Intellectual Property and Media Law University of East


Subhajit BasuAssociate Professor
University of Leeds
Sally Broughton MicovaDeputy Director LSE Media Policy Project, Department of Media and Communications
London School of Economics and Political Science
Abbe E.L. BrownSenior Lecturer
School of Law
University of Aberdeen
Ian BrownProfessor of Information Security and Privacy
Oxford Internet Institute
Ray CorriganSenior Lecturer in Maths, Computing and Technology
Open University
Angela DalyPostdoctoral Research Fellow
Swinburne Institute for Social Research
Swinburne University of Technology
Richard DanburyPostdoctoral Research Fellow Faculty of Law University of Cambridge
Catherine EastonLancaster University School of Law  
Lilian EdwardsProfessor of E-Governance Strathclyde University Andres GuadamuzSenior Lecturer in Intellectual Property Law University of Sussex
Edina HarbinjaLecturer in Law University of Hertfordshire
Julia HörnleProfessor in Internet Law Queen Mary University of London
Theodore KonstadinidesSenior Lecturer in Law University of Surrey
Douwe KorffProfessor of International Law London Metropolitan University
Mark LeiserPostgraduate Researcher Strathclyde University
Orla LynskeyAssistant Professor of Law London School of Economics
David MeadProfessor of UK Human Rights Law UEA Law School University of East Anglia
Robin MansellProfessor, Department of Media and Communication London School of Economics
Chris MarsdenProfessor of Law University of Sussex
Steve PeersProfessor of Law University of Essex
Gavin PhillipsonProfessor, Law School University of Durham Julia PowelsResearcher Faculty of Law University of Cambridge
Andrew PuddephattExecutive Director Global Partners Digital Judith RauhoferLecturer in IT Law University of Edinburgh
Chris ReedProfessor of Electronic Commerce Law Queen Mary University of London
Burkhard SchaferProfessor of Computational Legal Theory University of Edinburgh
Joseph SavirimuthuSenior Lecturer in Law University of Liverpool
Andrew ScottAssociate Professor of Law London School of Economics
Peter SommerVisiting Professor Cyber Security Centre, De Montfort University
Gavin SutterSenior Lecturer in Media Law Queen Mary University of London
Judith TownendDirector of the Centre for Law and Information Policy Institute of Advanced Legal Studies
University of London
Asma VranakiPost-Doctoral Researcher in Cloud Computing Queen Mary University of London
Lorna WoodsProfessor of Law University of Essex


Posted by Steve Peers at 03:18

In memoriam of Simonetta POZZI co-founder of the FREE-Group


On May 15, 2015 Simonetta POZZI co-founder (with Philippe DE BRUYCKER and myself) of the Fundamental Rights European Experts Group passed away due to severe heart failure.

What will be most missed by everyone who met her will be her noble spirit, her constant research of perfection together with true, heart-warming generosity, and her heightened sensibility.

On a political perspective She was a truth and Justice seeking person.

She hated hypocrisy, easy compromises as well as window dressing of political and diplomatic discourses. Hating ostentation She worked hard in the background to make more visible to the ordinary citizens the activity of regional, national and European Institutions.

I consider then a unique privilege to have been on her side in the last forty years.



Europe and “Whistleblowers” : still a bumpy road…

by Claire Perinaud (FREE Group trainee) The 9th and the 10th of April was organized in Paris by the University Paris X Nanterre la Défense in collaboration with the University Paris I Sorbonne a Conference on «  whistleblowers and fundamental rights »[1] which echoed a rising debate on the figure of  wistleblowers  after the numerous revelations of scandals and corruption which occurred last years, with some of them directly linked to EU institutions. In the following lines I will try to sketch a) the general framework then b) the main issues raised during the Conference

A) The general framework 

The term « whistle-blower » was created by Ralph Nader in 1970 in the context of the need to ensure the defense of citizens from lobbies. He defined « whistle blowing » as « an act of a man or woman who, believing that the public interest overrides the interest of the organization he serves, blows the whistle that the organization is in corrupt, illegal, fraudulent or harmful activity »[2]. The interest of scholars and lawyers to the figure of whistle-blowers in the United States dates back to the adoption by the Congress in 1863 of the False claims act which is deemed to be the first legislation related to the right of alert[3].
The system which developed afterwards is notably based on the idea that whistle-blowing is a strong mechanism to fight corruption and has to be encouraged by means of financial incentives[4]. If this mechanism is of utmost importance in the United States, protection of whistle blowers is only slowly introduced in Europe[5]
With numerous scandals related to systemic violations of human rights, the subject is progressively dealt with in the European Union (EU) and in the Council of Europe. Nevertheless, in both organizations, the protection of whistleblowers remain at the stage of project or only recommendations to the states.

The Council of Europe… Continue reading “Europe and “Whistleblowers” : still a bumpy road…”

The EU’s Planned War on Smugglers


by Steve Peers (Twitter: @StevePeers)

The EU’s Foreign Affairs Council is meeting today (May 18) to discuss the possibility of a military operation in the Mediterranean to take actions against smuggling of migrants. Officially, at least, the purpose of the operation (as defined by EU leaders last month) is to destroy smugglers’ boats. The EU’s High Representative has stated that there will be ‘no boots on the ground’; and as she arrived at the Council meeting today, she referred to authorising an ‘EU operation at sea’.

However, it is clear from the documents discussed in the EU’s Political and Security Committee last week that (unless plans have changed radically in the meantime) the  High Representative is being “economical with the truth”. The EU action clearly contemplates action by ground forces. Moreover, it anticipates the possible loss of life  not only of smugglers but also  of Member States’ forces and refugees. In effect, the EU is planning to declare war on migrant smugglers – without thinking through the consequences.


The document defines the purpose of the EU operation: ‘to disrupt the business model of the smugglers, achieved by undertaking systematic efforts to identify, seize/capture and destroy vessels and assets before they are used by smugglers.

There would be four phases: ‘(1) a deployment and assessment phase, (2) an operational/seizure (of smuggled vessels) phase; (3) an operational/disruption phase, (4) a mission withdrawal and completion phase. The EU states that authorisation by the UN is not required by the first phase. While ‘ideally’ there should be consent of ‘the government(s) concerned’, the EU document clearly contemplates going ahead without it.

Phase 1 – Deployment Continue reading “The EU’s Planned War on Smugglers”



by Steve Peers

The new British government has indicated that it is determined to repeal the UK’s own Human Rights Act (HRA) in the near future. There are a number of legal and political problems with this idea, which are aptly summarised (with many links to further discussion) in a new Jack of Kent blog post. But the issue of the overlap between the HRA and EU law isn’t discussed there. I blogged last year on how the Conservative party’s strategy document on this issue fit very awkwardly with the UK’s EU law obligations, but it’s a good time to update this analysis.

First of all, let’s simplify the analysis by assuming that the UK will not withdraw from the European Convention on Human Rights (ECHR), although as discussed in the prior blog post, the strategy document did raise the possibility that the UK will withdraw from that Convention if the Council of Europe raises too many objections to its plans. As I blogged previously, withdrawal from the ECHR could impact upon the UK’s EU membership, but we are not at that stage yet.

Secondly, we have not yet seen the details of the government’s proposals to repeal the HRA, but I will assume for now that they will not aim to disapply the EU’s Charter of Rights in the domestic laws of the UK. I have separately blogged on the reasons why this would be unfeasible, but let’s assume for now (until we see those proposals) that this is not the government’s intention.

The core of the government plan (if it follows the template set out in the previous strategy document) is to weaken the domestic system of human rights protection, decouple it from the ECHR system and introduce new rules which weaken substantive protection of human rights for any group of people whom the government deems to be sufficiently despicable (for more details, see my critique of the plan here). How does that relate to EU law? Continue reading “(UK) IS REPEALING THE HUMAN RIGHTS ACT COMPATIBLE WITH EU LAW?”



by Alex Tinsley, (*)

(*) Legal & Policy Officer (Head of EU Office) at Fair Trials, based in Brussels. Twitter: @AlexLouisT

On 9 April 2015, the European Court of Human Rights (‘ECtHR’) gave judgment in A.T. v Luxembourg. The judgment, which will become final unless referred to the Grand Chamber, in finding a violation of Article 6 of the European Convention on Human Rights (ECHR), develops the principles established in the Salduz v Turkey. At the invitation of Fair Trials International, third party intervener, it also takes into account, for the first time, Directive 2013/48/EU on access to a lawyer in criminal proceedings (the ‘Access to a Lawyer Directive’), a possible indicator of future convergence in this area.


The applicant, A.T. was questioned by police following surrender under a European Arrest Warrant (‘EAW’) (as to the cross-border aspect, see the post-script). On arrival, he demanded a lawyer. Police gave information (it is unclear what) which led him to accept to be questioned without one. He denied the offences. He was then questioned again before the investigating judge, with a lawyer present but (a) without having had the chance to talk with that lawyer beforehand and (b) without the lawyer having had sight of the case file prior to that questioning; again, he denied the offences.

A.T. argued that his defence rights had been breached as he had been denied access to a lawyer. The appeal court, and then the Court of Cassation, rejected this, essentially finding that he had agreed to be questioned without a lawyer and that no obligation arose to remedy any prejudice caused. With local remedies exhausted, A.T. applied to the ECtHR arguing a violation of Article 6 ECHR.

The legal territory: the Salduz principle Continue reading “A.T. V LUXEMBOURG: THE START OF THE EU-ECHR STORY ON CRIMINAL DEFENCE RIGHTS”


Brussels 13.5.2015

COM(2015) 240 final

  1. Introduction

Throughout history, people have migrated from one place to another. People try to reach European shores for different reasons and through different channels. They look for legal pathways, but they risk also their lives, to escape from political oppression, war and poverty, as well as to find family reunification, entrepreneurship, knowledge and education. Every person’s migration tells its own story. Misguided and stereotyped narratives often tend to focus only on certain types of flows, overlooking the inherent complexity of this phenomenon, which impacts society in many different ways and calls for a variety of responses. This Agenda brings together the different steps the European Union should take now, and in the coming years, to build up a coherent and comprehensive approach to reap the benefits and address the challenges deriving from migration.

The immediate imperative is the duty to protect those in need. The plight of thousands of migrants putting their lives in peril to cross the Mediterranean has shocked us all. As a first and immediate response, the Commission put forward a ten point plan for immediate action. The European Parliament and the European Council have lent their support to this plan and Member States have also committed to concrete steps, notably to avert further loss of life.

The response was immediate but insufficient. This cannot be a one-off response. Emergency measures have been necessary because the collective European policy on the matter has fallen short. While most Europeans have responded to the plight of the migrants, the reality is that across Europe, there are serious doubts about whether our migration policy is equal to the pressure of thousands of migrants, to the need to integrate migrants in our societies, or to the economic demands of a Europe in demographic decline.

To try to halt the human misery created by those who exploit migrants, we need to use the EU’s global role and wide range of tools to address the root causes of migration. Some of these are deep-seated but must be addressed. Globalisation and the communication revolution have created opportunities and raised expectations. Others are the consequence of wars and crises from Ukraine to the Middle East, Asia and North Africa. The impact of global poverty and conflict do not end at national frontiers.

Europe should continue to be a safe haven for those fleeing persecution as well as an attractive destination for the talent and entrepreneurship of students, researchers and workers. Upholding our international commitments and values while securing our borders and at the same time creating the right conditions for Europe’s economic prosperity and societal cohesion is a difficult balancing act that requires coordinated action at the European level.

This calls for a set of core measures and a consistent and clear common policy. We need to restore confidence in our ability to bring together European and national efforts to address migration, to meet our international and ethical obligations and to work together in an effective way, in accordance with the principles of solidarity and shared responsibility. No Member State can effectively address migration alone. It is clear that we need a new, more European approach. This requires using all policies and tools at our disposal – combining internal and external policies to best effect. All actors: Member States, EU institutions, International Organisations, civil society, local authorities and third countries need to work together to make a common European migration policy a reality.

  1. Immediate action
  2. Continue reading “European Commission: A EUROPEAN AGENDA ON MIGRATION”

EU Asylum Policy: In Search of Solidarity and Access to Protection

ORIGINAL PUBLISHED ON Migration Policy Centre, EUI

by Evangelia (Lilian) Tsourdi and Philippe De Bruycker,

1.State of play

Growing numbers of the forcibly displaced

Numerous crises and conflicts worldwide have forced more people from their homes, in the last years and months, than at any time in the last two decades1. The Syrian conflict has, for example, triggered the world’s largest humanitarian crisis since World War II, leading 3.9 million refugees to flee and leaving an estimated 12.2 million persons in need of humanitarian assistance inside Syria2. At the same time, significant numbers have had to flee other countries including Iraq, Afghanistan and Eritrea in order to seek asylum3.

The vast majority of those forcibly displaced outside their country of origin or residence remain in neighboring countries. The Syrian crisis is a telling example in this respect. Countries bordering Syria are coming close to saturation, particularly Lebanon, which hosts the largest per capita refugee population in the world with almost 1.2 million Syria refugees4. It has to be remembered that the Syrian refugee crisis comes just after the Iraqi refugee crisis of 2006-2009, which had displaced around two million Iraqi citizens towards the very same countries: Syria, Jordan, Lebanon, Turkey and Egypt5.

It is against this backdrop that the relative rise in asylum applications to the EU28 and the EU’s advancement in the creation of a common asylum system, as well as its role as a global protection actor should be assessed.

Is a Common European Asylum System in place?

The incremental development of a CEAS has been agreed since the Treaty of Amsterdam and the Tampere conclusions of 19997. The first stage of development revolved around efforts at legal harmonization on the basis of shared minimum standards. However, a common asylum procedure and a uniform status valid throughout the EU were seen as the end objective. It became apparent that legal harmonization alone would not be enough to bring about this result. Therefore, the development of other elements, and most notably, practical cooperation and enhanced solidarity came up.

It was gradually recognized that there were a number of advantages in joining forces in the asylum area. There was, of course, the rather ‘inward-focused’ motivation of establishing a common asylum system in order to limit secondary movements of protection seekers that had reached EU territory. But there were, also, more ‘outward looking goals’. Notably, these were: coordinating action in order to have a strategic impact externally; collaborating with third countries in the management of migration flows; and, less prominently, boosting the possibilities of legal access to the EU for international protection seekers.

Examined macroscopically, the CEAS is an advanced regional protection framework, both legislatively and policy-wise, that has the potential to influence the international refugee protection regime. Member States have sought to devise concrete mechanisms to allocate responsibility and they have elaborated detailed norms in areas that are not covered by the 1951 Refugee Convention, such as asylum procedures. They possess an institution, the Court of Justice of the EU, which is tasked with authoritatively interpreting the common norms, in an area where there is no ‘international refugee Court’. They have managed to move from ad-hoc support and exchanges of good practice to the institutionalization of practical cooperation efforts, by creating an EU agency. Finally, they have begun to coordinate their actions externally in an effort to manage, as much as possible, migration flows and to build protection capacity in third countries.

Nevertheless, the EU’s asylum system is riddled with problems that hold back its development. First of all, the responsibility-allocation mechanism that has been devised fails to share responsibility equitably between the Member States; it also largely disregards the realities faced by protection seekers and their preferences. More broadly, no objective discussion of what is a fair share of responsibility has ever taken place. This creates disincentives: on the one hand, for Member States to respect the obligations they have undertaken legislatively and, on the other, for protection seekers to abide by the rules, which do not take into account their links to specific Member States. Beyond the legislative and policy framework, the differentiated level of economic development between Member States, the discrepancies in their social assistance systems and the varying levels of investment in their asylum processing and reception systems, have led to widely diverging recognition rates and reception conditions. This has undercut the objective of curbing secondary movements between Member States; on the contrary it has fuelled them.

Finally, the EU’s external asylum dimension remains underdeveloped and is disproportionately focused on capacity building, while offering meagre opportunities for legal entry to protection seekers. On the contrary, the various measures the EU has taken as part of its external border control or visa policies have stifled access to protection and have led asylum seekers to risk their lives in order to reach EU territory. The impact of these policy choices is witnessed most vividly in the loss of life in the waters of the Mediterranean. Mediterranean crossings are not new; however, there an ever-increasing number of deaths in conjunction with a record number of migrant crossings8.

  1. Why is reform still necessary?
  2. Continue reading “EU Asylum Policy: In Search of Solidarity and Access to Protection”



by 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.


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.


Mutual Recognition of Positive Asylum Decisions in the European Union

by Valsamis Mitsilegas (*)

The following lines summarize the issues I have raised at the Conference on “Managing Asylum Flows: Strengthening the Tools, Strengthening the System” organized by the Italian Presidency of the Council on 18-19 November 2014.

1. In order to evaluate the legal challenges surrounding the development of the Common European Asylum System (CEAS), one must bear in mind the paradox at the heart of the evolution of the Area of Freedom Security and Justice (AFSJ): while for a great part of EU Member States internal borders have been abolished, the administration of law and justice continues to take place at the national level, in accordance with national procedures and law. A Common European Asylum System has not (yet) led to a single European asylum status or procedure.

2. Mutual recognition has been one of the key tools which have been developed in EU law to manage the interaction of national legal systems in this context. Its operation in the AFSJ involves a system whereby decisions by judicial authorities issued in one Member State are recognised and executed speedily and with a minimum of formality and limited grounds for refusal by authorities in other Member States.

3. Mutual recognition has developed in this context in the fields of civil and criminal law. In criminal law, the system established by the European Arrest Warrant Framework Decision is emblematic of the application of the principle of mutual recognition in criminal matters. While the majority of the mutual recognition of the EU acquis in criminal law involves the mutual recognition (and thus extraterritorial application) of decisions aimed at law enforcement and at increasing the powers of the state, there are two Framework Decisions which lead to the mutual recognition of rights: the FD on the European Supervision Order (ESO- concerning the recognition of decisions on bail); and the FD on the European Protection Order (EPO- concerning the extraterritorial application of decisions granting rights to victims of crime such as restraining orders).

4.Notwithstanding the much higher degree of harmonisation in the field of asylum law compared to criminal law, mutual recognition has not been used extensively in the field of asylum. Mutual recognition has been used in a negative manner only in the Dublin system, whereby a decision by national authorities not to examine an asylum claim and leading to the transfer of an asylum seeker to another Member State is almost automatically recognised by the other Member State. The priority is here not to transfer rights, but to shield national systems from the presence and the examination of claims by asylum seekers. Recent case-law by European courts (MSS and Tarakhel in Luxembourg and NS in Luxembourg) has placed limits to the Dublin automaticity and the Dublin system under strain.

5. In the light of the above, the time has come to consider the application of the principle of mutual recognition to positive asylum decisions in EU law. The application of mutual recognition in this context provides five distinct and clear benefits:

a)It will create legal certainty as regards the status and rights of refugees throughout the EU in an AFSJ without internal frontiers

b)It is consistent with the Treaty aim of establishing a CEAS and a uniform status (Article 78 TFEU)

c) The necessary harmonisation which is necessary for the effective operation of mutual recognition exists at EU level, with the adoption of the second generation CEAS instruments post-Lisbon. There is a need to focus on the implementation of and compliance with these instruments across the EU.

d) Mutual recognition of positive asylum decisions is a corollary to developments examining possibilities for the pooling of reception conditions and join processing of asylum claims. Pooling of reception and procedure must be combined with the pooling of protection. Joint efforts in procedures and reception before the granting of refugee status will create joint ownership and mutual trust which will facilitate the subsequent recognition of positive asylum decisions across the EU.

e) Mutual recognition of positive asylum decisions focuses the discussion on solidarity specifically on the needs and rights of the refugee.

6. Point 5 has examined the question of why mutual recognition. This point will address the question of how.
There are three factors which must be considered when examining the precise conditions and modalities for the application of the principle of mutual recognition to positive asylum decisions:

Time: from when will mutual recognition kick in? One option is for mutual recognition to kick in from day one, namely from the date of the judicial decision granting refugee status. Another option may be for mutual recognition to kick in after 2 years of continuous residence in the state which has granted protection in line with the time limits established by the European Agreement of Transfer of Responsibility. A third option may be a hybrid model where movement to the second Member State happens immediately but equal treatment with long-term resident third-country nationals is granted from day one, whereas equal treatment with nationals of the second state is granted after 2 years.

Rights: For mutual recognition to be meaningful, the recognition of status should be accompanied by the recognition of rights. The protection and rights which the refugee is granted in the first Member State should follow her in the second Member State. There are different moments in time when this can happen (see under i).

Quotas: a possible way forward is to combine mutual recognition with the allocation of responsibility between Member States on the basis of quotas. However, this option faces two challenges: it may disregard the particular situation and wishes of refugees (eg in the context of family reunification); and it is hard to enforce in a Union without internal frontiers.

(*) Professor of European Criminal Law, Director of the Criminal Justice Centre / Head of the Department of Law, Queen Mary University of London.