US CONGRESSIONAL RESEARCH SERVICE: Overview of Constitutional Challenges to NSA Collection Activities

FULL REPORT ACCESSIBLE HERE (May 21, 2015)

by Edward C. Liu Legislative Attorney, Andrew Nolan Legislative Attorney and  Richard M. Thompson II Legislative Attorney

Summary

Beginning in summer 2013, media reports of foreign intelligence activities conducted by the National Security Agency (NSA) have been widely published. The reports have focused on two main NSA collection activities approved by the Foreign Intelligence Surveillance Court (FISC) established under the Foreign Intelligence Surveillance Act (FISA) of 1978. The first is the bulk collection of telephony metadata for domestic and international telephone calls. The second involves the interception of Internet-based communications and is targeted at foreigners who are not within the United States, but may also inadvertently acquire the communications of U.S. persons. As public awareness of these programs grew, questions about the constitutionality of these programs were increasingly raised by Members of Congress and others. This report provides a brief overview of these two programs and the various constitutional challenges that have arisen in judicial forums with respect to each.

A handful of federal courts have addressed the Fourth Amendment issues raised by the NSA telephony metadata program. FISC opinions declassified in the wake of the public’s awareness of the NSA telephony metadata program have found that the program does not violate the Fourth Amendment. Similarly, in ACLU v. Clapper, the federal District Court for the Southern District of New York held that a constitutional challenge to the telephony metadata program was not likely to be successful on the merits. On appeal, the United States Court of Appeals for the Second Circuit refrained from reaching the merits of this Fourth Amendment challenge, but instead resolved the case on statutory grounds, holding that the metadata program exceeded statutory authorization under Section 215 of the PATRIOT Act. However, the panel did engage in a general discussion about the Fourth Amendment principles implicated by this program, including the effect of modern technology on American’s expectations of privacy. Both the district courts for the Southern District of California and the District of Idaho have found the bulk metadata program constitutional under existing Supreme Court precedent. In Klayman v. Obama, the federal District Court for the District of Columbia held that there is a significant likelihood that a challenge to the constitutionality of the NSA telephony metadata program would be successful.

Constitutional challenges to the NSA’s acquisition of Internet communications of overseas targets under FISA have arisen in a number of different contexts. First, such challenges have arisen in both the FISC and the Foreign Intelligence Surveillance Court of Review as part of those courts’ roles in approving the parameters of these collection activities. Secondly, constitutional challenges have been brought in traditional federal courts as civil actions by plaintiffs asserting an injury or in criminal proceedings by defendants who have been notified that evidence against them was obtained or derived from collection under Section 702. While the FISA courts have at times curbed the government’s ability to engage in surveillance activity to ensure compliance with the Fourth Amendment, the one federal court to address the issue has upheld the program against constitutional challenge.

CONTINUE READING HERE

 

 

VERFASSUNGSBLOG : Europe’s Justice Deficit

SEE ORIGINAL CONTRIBUTIONS HERE

The EU affects the lives of many people in ways they perceive as profoundly unjust. Lives are dramatically affected by the policies of austerity, widely understood to be EU-imposed. With the Court of Justice appearing to stand for its own authority and EU autonomy at any cost; with migrants attempting to reach fortress Europe and drowning en masse as the EU cuts back its rescue services; and with economic inequalities in the Member States reaching new heights, could it be that there is a justice deficit in Europe, exacerbated by the European Union? There is an urgent need to address the question of justice as an EU objective openly and without reservation, and not to permit nationalists and Eurosceptics to monopolize this debate. On the occasion of the newly launched book “Europe’s Justice Deficit?”, co-edited by EU constitutional law scholars Dimitry Kochenov, Gráinne de Búrca and Andrew Williams, we put this question up for debate.

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JUMP BEFORE YOU’RE PUSHED: THE CJEU RULES ON THE VOLUNTARY DEPARTURE OF IRREGULAR MIGRANTS

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by  Steve Peers

For the first time, the CJEU ruled yesterday (in its judgment in Zh and O) on the provisions of the EU’s Returns Directive (the main set of rules governing the expulsion of irregular non-EU migrants) concerning ‘voluntary departure’. The word ‘voluntary’ is a euphemism here, of course:  there’s still a legal obligation for the migrant to leave, underpinned by the threat of force. But nevertheless it still makes a big difference to the people concerned whether they have a chance to leave the country under their own steam. If they aren’t given that chance, they are likely to be woken up in their homes in the middle of the night, arrested, detained in jail, and restrained on their journey to their country of origin or transit by an armed officer. Some are injured or die during this process. So it’s far better to jump than to be pushed.

But when do irregular migrants have the choice to do so? The Returns Directive makes it the normal rule to give them a period for voluntary departure, for a period of between seven and thirty days.  This time must be extended if necessary in individual cases, for instance whether there are children in school. But there are exceptions: Member States may decide not to grant this period, or to curtain it to less than seven days, in three cases: where there’s a ‘risk of absconding’; where ‘an application for a legal stay has been dismissed as manifestly unfounded or fraudulent’; and if the person concerned ‘poses a risk to public policy, public security or national security’.

If one of these exceptions apply, the removal must then be carried out by national officials, and the Directive in principle requires the migrant to be issued with an entry ban. (It’s still an option for a Member State to issue an entry ban in cases of voluntary departure). Migrants who have the chance of voluntary departure are entitled to family unity, emergency health care and education in the meantime, and it’s implicit that they would not normally be detained.

The Zh and O judgment concerns the third of the exceptions from the rule of giving a period for voluntary departure: the exception for ‘public policy’, et al. Last year’s judgment in Mahdi, discussed here, touched on the first exception (the ‘risk of absconding’), in a different context (the grounds for detention). Zh and O was about two separate cases, and the Dutch courts asked three questions to clarify the meaning of the public policy exception.

Judgment

The national court wanted to know whether the ‘public policy’ exception had the same meaning as the similar provisions in the EU’s citizens’ Directive, and also the EU Directives on family reunion and long-term resident non-EU citizens. First of all, the CJEU said that the exception had to be interpreted ‘strictly’. It confirmed that the three exceptions to the rule of voluntary departure were the ‘only’ ones allowed. A Member State has to ‘prove’ that there is a risk to public policy. Secondly, the voluntary departure rule aimed, among other things, to protect the ‘fundamental rights’ of the persons concerned during the expulsion process.

So while Member States ‘retain the freedom’ to decide on the concept of public policy, they did not have full latitude to determine the concept without any control by the Court. Here the CJEU referred ‘by analogy’ to case law on the EU citizens’ Directive. So the exception had to be applied on a ‘case-by-case basis’, to decide if the ‘personal conduct’ of the migrant ‘poses a genuine and present risk to public policy’. This meant the suspicion of committing a criminal act, or even a criminal conviction, could not by itself justify the conclusion that a ‘public policy’ risk exists.

On the other hand, the ‘public policy’ exception could still apply where an appeal against a criminal conviction had not yet been decided, or where there was no conviction, as long as ‘other factors’ justified the use of that exception. What are those other factors? The Court referred to the ‘nature and seriousness’ of the act and ‘the time which has elapsed since it was committed’. So the national court had to consider that in one case, the migrant was actually not trying to stay in the Netherlands without authorisation, but was on his way out (travelling to Canada) when he was stopped. In the other case, the migrant had been accused of domestic abuse, but it was relevant that there was nothing to substantiate that accusation.

Finally, the Court ruled that there did not have to be a separate assessment of the question of limiting voluntary departure; that issue could be considered when making the initial return decision. The Court reiterated its prior judgment in Boudjlida (discussedhere), when it ruled that the migrant must have the opportunity to be heard on the question of whether voluntary departure ought to be granted.

COE Human Rights Commissioneer : Reinforcing democratic oversight of security services cannot be further delayed

Strasbourg, 5 June 2015 – “The current systems of oversight of national security services in Europe remain largely ineffective. Revelations over the last years about security operations which have violated human rights should have prompted reforms in this field, but progress has been disappointingly slow. European countries must now ensure more democratic and effective oversight of what their security services do and avoid future operations leading to new human rights violations,” said today Nils Muižnieks, Commissioner for Human Rights, while presenting a report on this topic.

The report intends to provide guidance to strengthen human rights protection in the field of security services. It sets forth a number of measures necessary for making national oversight systems more effective and the security services accountable and fully compliant with human rights standards.  “Security service activities impact a variety of human rights, including the right to life, to personal liberty and security, and the prohibition of torture or inhuman, cruel and degrading treatment. They also impinge on the right to privacy and family life, as well as the rights to freedom of expression, association and assembly, and fair trial. It is therefore crucial that security services uphold the rule of law and human rights in undertaking their tasks.”

Council of Europe member states have taken diverse approaches to oversight, which include parliamentary committees, independent oversight bodies, institutions with broader jurisdictions such as ombudspersons, data commissioners and judicial bodies. However, none abides fully to internationally established norms. Drawing upon international and European standards and national practices, the paper sets out the most significant objectives and overriding principles that can enable more effective oversight of security services. “It is necessary to keep oversight democratic, primarily through the involvement of parliaments. It is also crucial to ensure prior authorisation of the most intrusive measures, including surveillance, and to establish a body able to issue legally binding decisions over complaints by individuals affected by security activities, as well as to access all intelligence-related information,” said the Commissioner.

“Security services exist to protect our democracies. Their work is fundamental to ensure that we all can live in security. This paper intends to show how their activities can be best sustained by policies which ensure their lawfulness and accountability. Ensuring that security agencies operate under independent scrutiny and judicial review does not reduce their effectiveness. On the contrary, governments would increase their credibility among the public and weaken support for anti-democratic causes if they show as much resolve in safeguarding human rights as in fighting terrorism.”

The executive summary and the Commissioner’s recommendations are also available in French and German. Translations into Turkish and Russian are under way.

To read more about the Commissioner’s work on counter-terrorism and human rights, please visit this page.

Press contact in the Commissioner’s Office:
Stefano Montanari, + 33 (0)6 61 14 70 37; stefano.montanari@coe.int
www.commissioner.coe.int; Twitter: @CommissionerHR; Facebook; youtube
 

The Commissioner for Human Rights is an independent, non-judicial institution within the Council of Europe, mandated to promote awareness of, and respect for, human rights in the 47 member states of the Organisation. Elected by the Parliamentary Assembly of the Council of Europe, the present Commissioner, Mr Nils Muižnieks, took up his function on 1 April 2012

INTEGRATION REQUIREMENTS FOR THIRD-COUNTRY NATIONALS: THE FIRST CJEU RULING

ORIGINAL PUBISHED ON EU LAW ANALYSIS

by Steve Peers

When can a Member State require immigrants to undertake integration courses? The Court of Justice dealt squarely with this issue for the first time in today’s judgment in P and S, which concerned the application of the EU’s Directive on the long-term residence of non-EU citizens. (The UK, Ireland and Denmark have an opt-out from this law).

The judgment has a broader relevance, since the EU Directive on family reunion for non-EU citizens also provides for Member States to adopt integration conditions. On the other hand, EU free movement law does not provide for Member States to impose such conditions on EU citizens or their family members. As for Turkish nationals, the EU-Turkey association agreement does not provide for such a condition either, but Member States may impose one subject to a standstill rule in most cases (see last year’s Dogan judgment, discussed here).

Today’s judgment turns on the wording of the long-term residence Directive, which states that Member States ‘may require third-country nationals to comply with integration conditions, in accordance with national law’. The case concerned non-EU citizens who already had long-term resident status under the Directive, but Dutch law still requires them to take civic integration courses and penalises them with a fine every time they fail. A later change to Dutch law requires non-EU citizens to pass these courses before they get long-term residence status, but that later version of the law was not directly at issue in this case.

Judgment

According to the Court, the requirement to take integration courses does not as such infringe the Directive, first and foremost because the Directive clearly permits an integration condition to be imposed before obtaining long-term resident status. Next, the Court ruled that the requirement did not breach the equal treatment rule set out in the Directive, since Dutch nationals could be presumed to have knowledge of Dutch society and the Dutch language, whereas non-EU citizens could not.

However, that was not the end of the Court’s analysis. It then focussed on whether the national rules undercut the effectiveness of the Directive. The Directive had as its main aim the integration of non-EU citizens, and the Court stated that learning the national language and about the host State could facilitate communication with Dutch citizens, and ‘encourages interaction and the development of social relations’. Acquiring a knowledge of Dutch also ‘makes it less difficult’ to find work and take up training courses. The integration requirement therefore contributed to the aims of the Directive.

The Court went on to say that there were some limits upon what Member States can do, as regards ‘the level of knowledge required to pass the civic integration examination’, ‘accessibility of the courses and the material  necessary to prepare’ for the exams, the level of registration fees and ‘specific individual circumstances, such as age, illiteracy or level of education’. But the Court seemed most concerned about the amount of the fines, which were quite high and would be imposed for every failure, or even where the non-EU citizen had not sat the exam within the required time. The fines were also imposed on top of the high fees to sit the exam. So in principle this aspect of the system infringed EU law, although it was left to the national court to apply the Court’s ruling in practice. Finally, the Court stated that it was irrelevant whether the persons concerned already had long-term resident status, since (in this case) it was not a condition for getting or retaining that status.

Comments

The Court’s ruling makes clear that Member States can in principle impose integration requirements for long-term residence status, subject to the principle of effectiveness. The main feature of that principle in this case was the fees for failing (or not sitting) the exam, in conjunction with the fees for sitting the exam. Obviously the Dutch government is now obliged to lower those fees, and other Member States’ rules could be challenged on the same basis. The ruling is obviously particularly relevant to less wealthy migrants who would struggle to pay the fines and test fees several times over.

Although the Court did not rule in any detail on the other limits which EU law imposes upon national integration requirements, such limits certainly exist, as regards the level of knowledge needed to pass, the accessibility of tests and materials, and ‘specific individual circumstances’. It is not clear from the judgment exactly how Member States are obliged to take account of such circumstances – whether by means of a complete exemption from the test or a different version of it. But it should be noted that the list of specific circumstances mentioned by the Court is not exhaustive (‘such as’).

While the judgment clearly implies that Member States may even withhold long-term residence status if an integration test is not passed, the Court did not rule on that issue as such. So it remains open to argue that there may be stricter limits or other factors to consider when Member States impose an integration condition to acquire that status.

Nor did the Court rule on whether the failure to meet an integration condition could be a ground to lose long-term resident status. The Directive does not list this as one of the possible grounds for loss of that status, and it should follow from the objective of the Directive that the list of grounds which could lead to such a loss of status is exhaustive. This also follows from the structure of the Directive: if failure of an integration test could lead to loss of status, why did the drafters of the Directive only mention integration tests in the clause dealing with acquisition of that status?

Today’s judgment is only the first in a line of cases upcoming concerning integration conditions (the next batch of cases concern the parallel clause in the family reunion Directive). As a starting point, the Court has struck a good balance between ensuring that immigrants fit into society and the need to prevent integration tests forming a disguised means of excluding migrants from ever really fitting in despite their genuine efforts.

THE FRENCH “WAR ON TERROR” IN THE POST-CHARLIE HEBDO ERA

ORIGINAL PUBLISHED ON EUCRIM EDITED BY THE MAX PLANCK INSTITUTE AND THE EUROPEAN CRIMINAL LAW ASSOCIATION’S FORUM (*)

by Vasiliki Chalkiadaki

I. Introduction

France’s history of terrorism is neither new nor exclusively Islamist-related. At the end of the 1970s, France experienced a wave of terrorist activity both from left-revolutionary groups, such as the Action Directe,1 and from nationalist-separatist groups, especially those active in Brittany, Corsica, and the Basque Country.2 By the early 1980s, however, France had become a target of Islamist terrorist groups and has remained so ever since, as the gunmen attack on the Paris headquarters of the satirical magazine Charlie Hebdo on 7 January 2015 demonstrated.3

The history of contemporary French counterterrorism legislation dates back to 1986, with the law on counterterrorism of 9 September 1986. Before the latter, France dealt with terrorist attacks by means of special laws on state security that had been enacted during the Algerian wars (1954–1962), which provided for an intensive limitation of individual rights and even for a special court to deal with the relevant offences (Cour de Surete de l’Etat, “Court of State Security”)4 that was abolished only in 1982. Therefore, until 1986, no specific counterterrorism legislation existed.

Before 1986, terrorist acts were characterized as “serious violent acts threatening the integrity and the security of the state” and treated accordingly.5

This paper presents the impact that the latest terrorist attack (hereafter: the Charlie attack) has had so far on France’s counterterrorism legislation (part III). After a brief historical overview of current legislative measures (part II), the following aspects are examined as being the effects of the attack:

  • the enactment of a series of provisions, mainly in the Code of Internal Security (Code de securite interieure, hereafter: Cod. Sec. Int.);
  • the exponentially increasing number of prosecutions on the basis of already existing substantive criminal law provisions (especially the glorification of terrorism and the preparation of terrorist acts);
  • the planning of new measures and the drafting of the relevant provisions regarding the financing of terrorism to reinforce the already existing framework on terrorist financing.
  • II. Historical overview Continue reading “THE FRENCH “WAR ON TERROR” IN THE POST-CHARLIE HEBDO ERA”

The US legal system on data protection in the field of law enforcement. Safeguards, rights and remedies for EU citizens

EXECUTIVE SUMMARY OF STUDY FOR THE EUROPEAN PARLIAMENT LIBE COMMITTEE PUBLISHED HERE

by Francesca BIGNAMI (*)

In US law, there are a number of different legal sources that govern data protection in the field of federal law enforcement. This study first considers the two most important sources of data protection law^the Fourth Amendment to the US Constitution and the Privacy Act of 1974. It then turns to the most significant methods of information collection that are available for ordinary criminal investigations and national security investigations and the data protection guarantees set down under the laws authorizing and regulating such information collection.

The Fourth Amendment prohibits “unreasonable searches and seizures” by the government. Reasonableness is established if the search or seizure is conducted pursuant to a valid warrant, that is, a judicial order based on a showing of probable cause and on a particular description of the property to be searched and the items to be seized. Reasonableness can also be established if one of the exceptions to the warrant requirements exists. In the data protection context, however, the application of the Fourth Amendment is relatively limited because of the third-party records doctrine which holds that individuals do not have an expectation of privacy in personal data that they voluntarily turn over to third parties like financial institutions and communications providers. With regard to EU citizens, the Supreme Court has held that foreign citizens resident abroad are not covered by the Fourth Amendment.

Among U.S. laws, the Privacy Act of 1974 is the closest analogue to a European data protection law in that it seeks to regulate comprehensively personal data processing, albeit only with respect to federal government departments and agencies. It regulates the collection, use, and disclosure of all types of personal information, by all types of federal agencies, including law enforcement agencies. At a general level, the Privacy Act contains most of the elements of the EU right to personal data protection. However, it only protects US citizens and permanent residents, not EU citizens.

Furthermore, there are a number of exemptions available specifically for law enforcement agencies. As a result, the benefits of the proposed legislation on judicial redress for EU citizens are unclear. The proposed legislation contemplates three types of law suits, two of which are designed to protect the right of access to and correction of personal data, and one of which enables individuals to obtain compensation for unlawful disclosures of personal data. Since law enforcement agencies commonly exempt their data bases from the access requirements of the Privacy Act, the right of action for intentional or willful disclosures that cause actual damage is the only one that would be available on a general basis.

In investigations involving ordinary crime, there are at least three different methods of personal data collection available to law enforcement officials: (1) use of private sources like commercial data brokers; (2) court and administrative subpoenas; (3) electronic surveillance and access to electronic communications based on a court order under the Electronic Communications Privacy Act. These information-gathering methods afford the same level of data protection for US and EU citizens.

With respect to EU data protection law, however, some of these methods contain relatively few data protection guarantees.

In the case of private sources of personal data, this is attributable to the absence of a comprehensive data protection scheme in the private sector and the vast quantities of personal information freely available to market actors and, consequently, also to law enforcement officials. With respect to the subpoena power and access to communications metadata and subscriber records (under the Stored Communications Act and the Pen Register Act), the lack of significant data protection guarantees is associated with the standard of “relevance” to any type of criminal investigation and the permissive application of that standard by the courts. The law and jurisprudence of “relevance,” in turn, is driven by the failure of US law to recognize a robust privacy interest in the personal data held by corporate entities and other third parties.

In investigations involving national security threats, which can involve both an intelligence and a law enforcement component, there are a number of additional means available to the government: (1) a special type of administrative subpoena known as a “national security letter”; (2) surveillance authorized by the Foreign Intelligence Surveillance Act (FISA); (3) any other form of intelligence gathering authorized by Executive Order 12,333 (and not covered by FISA). The information gathered through such methods can be shared with criminal prosecutors if relevant for law enforcement purposes.

Foreign intelligence gathering, both inside and outside the United States, follows a two-track scheme, one for US persons and another for non-US persons. With the exception of FISA electronic and physical surveillance orders, the data protection guarantees afforded to non-US persons are minimal. The stated intent of Presidential Policy Directive 28 is to provide for stronger personal data protection for non-US persons, but it is difficult to come to any conclusions at this point in time on what effect it will have.

More generally, even with respect to US persons, personal data protection under foreign intelligence law raises a couple of questions.

The first concerns the point in time when the right to privacy is burdened by government action. The US government has suggested that in the case of bulk collection of personal data, harm to the privacy interest only occurs after the personal data is used to search, or results from a search of, the information included in the data base.

This position stands in marked contrast with EU law, where it is well established that bulk collection, even before the personal data is accessed, is a serious interference with the right to personal data protection because of the number of people and the amount of personal data involved.

The second question concerns the conditions under which personal data can be shared between intelligence and law enforcement officials. In the realm of data processing by law enforcement and intelligence agencies, the European courts have emphasized that intrusive surveillance can only be conducted to combat serious threats that are carefully defined in law. They have also held that the information that results from such surveillance can only be used to combat those serious threats, whether to take national security measures or to prosecute the associated criminal offenses. In US law, by contrast, the law allows for intelligence to be transferred to the police and criminal prosecutors for any type of law enforcement purpose.

Continue reading here 

(*) Prof. at George Washington University Law School, Washington, DC, USA

Summer School on The European Area of Criminal Justice (Brussels, 29 June – 3 July 2015)

NB: This Summer School is particularly designed for practitioners in the field of police cooperation and judicial cooperation in criminal matters, EU or national civil servants, as well as researchers and students interested in EU “Freedom, Security and Justice” policies.

Programme (See updated version here)

The 12th edition of the Summer School “The EU Area of Criminal Justice” will take place in Brussels from 29 June – 3  July  2015.

The objective of the Summer School is to provide participants with an extensive knowledge of EU criminal law. The classes are both theoretical and practical. They are conducted by academics, national experts or European officials who deal every day with the European criminal area.

The Summer School is specially designed for practitioners in the field of police and judicial cooperation in criminal matters, EU or national civil servants as well as researchers and students interested in the EU area of freedom, security and justice.

Concerning the programme: the Summer School takes place over a week, lectures are in English, participants receive a certificate of attendance, the final examination entitles participants to receive 3 ECTS and lawyers to gain 37 points from the OBFG (Ordre des Barreaux Francophones et Germanophone de Belgique).

The Summer School covers essentially 5 topics :

  • subject I (day 1): general introduction (historical evolution, institutional issues – Schengen included, judicial control – EU accession to ECHR included);
  • subject II (day 2): cooperation between national authorities in criminal cases, covering both police cooperation and judicial co-operation. The latter will address the evolution from classic judicial cooperation (Mutual Legal Assistance instruments) to mutual recognition instruments, with special attention to the  European Arrest Warrant;
  • subject III (day 3): approximation of criminal law, in theory and practice. Thus, following a class on the approximation of substantive criminal law, the example of financial crimes will be addressed. Similarly, the theoretical course on approximation of procedural law will be complemented with the study of the Directive on the right of access to a lawyer;
  • subject IV (day 4): current and future actors of the European criminal area, particularly Eurojust, Europol and the EPPO.
  • subject V (day 5): data protection and external dimension of the EU area of criminal justice. The Summer School will end with a negotiation exercise.

Special events during the Summer School:

  • Mid-week conference : “Foreign fighters – a criminal law revolution?” 

The conference will be chaired by Hans G. Nilsson (General Secretariat of the EU Council) and will count on speeches from illustrious practitioner and professors. For details, please download the programme on the right.

The Summer School is organised by the Institute for European Studies of the Free University of Brussels (IEE-ULB) in collaboration with the European Criminal Law Academic Network (ECLAN).

THE NEW EU MIGRATION AGENDA TAKES SHAPE: ANALYSIS OF THE FIRST NEW MEASURES

ORIGINAL PUBLISHED ON MAY 28 ON  EU LAW ANALYSIS

by Steve Peers

This week the European Commission took its first steps towards implementing its new EU Migration Agenda (previously discussed here). A number of the items in the agenda have already been addressed (for instance, the military mission against smugglers on the Libyan coast, as discussed here). Others will be addressed later: a broader reform of legal migration law and changes to the rules on asylum procedures and the ‘Dublin’ rules on responsibility for asylum-seekers.

The first batch of measures contained five different elements. First of all, the Commission launched a public consultation on the reform of the existing EU law providing for a ‘Blue Card’ for the admission of highly-skilled non-EU migrants. I have commented previouslyhere on the implementation of this law and the reforms to it which should be adopted.

Secondly, the Commission released an Action Plan against migrant smuggling. This mainly elaborates upon several ideas mentioned already in the main agenda. This includes: a revision of EU anti-smuggling law, planned for 2016, to increase smugglers’ penalties and clarify humanitarian exceptions from the rules; possible new rules on immigration liaison officers in 2016; a Handbook on expulsion in 2015; a possible revision of the rules on trafficking victims, in 2016, to include ‘victims’ of smuggling; a revision of the legislation on Frontex (the EU border agency), to give it more powers relating to expulsion; changes to the rules on the Schengen Information System in 2015-16, so that all Schengen Member States’ entry bans are applicable across the Schengen area; a handbook on prevention of migrant smuggling in 2017; readmission agreements with sub-Saharan countries; and stronger enforcement of the rules prohibiting employment of irregular migrants. Most of these measures concern all irregular migrants, not just those who were smuggled to the EU.

Thirdly, the Commission adopted a Recommendation on the resettlement of refugeesdirectly from outside the EU to EU Member States. The text of this measure has not yet appeared, and so I can’t comment on it in detail. Obviously though, as a Recommendation it is non-binding, and as an act of the Commission, it does not need the approval of the Council or the European Parliament. According to the new Immigration Agenda, there will be EU funds attached to each resettled refugee, so Member States are encouraged to resettle people. It is a useful measure to ensure that a bigger number of persons are rescued without having to risk their lives or pay smugglers to cross the Mediterranean, although the overall numbers are likely to be modest.  In the event that Member States do not make use of the Recommendation to resettle refugees, the Migration Agenda promises a proposal for a binding measure, although it might be hard to find sufficient support in Council for its adoption.

Fourthly, the Commission issued guidance on the fingerprinting of asylum-seekers, as provided for in the EU’s Eurodac legislation, which sets up a database of such fingerprints in order to apply the ‘Dublin’ rules more effectively. In the Commission’s view, any irregular border-crosser who refuses to give fingerprints ought to be detained, expelled and subjected to an entry ban, in accordance with EU asylum law and the Returns Directive. Alternatively, Member States could force them to take fingerprints, with apossible exception for pregnant women and minors. Frankly, the correct application of the EU’s Dublin system is not worth the health of life of a single unborn child.

Moreover, the Commission appears to be confused about the details of the relevant legislation. It would be necessary to prove that refusal to take fingerprints ‘avoids or hampers the preparation of return or the removal process’ to justify detention under theReturns Directive; but the purpose of the fingerprinting is mainly to apply the Dublin asylum rules, not to ‘prepare the return and/or carry out the removal process’, which is the legal basis for detention of irregular migrants under the Returns Directive. Furthermore, the rules on entry bans in that Directive make no reference to the issue of fingerprinting. As for asylum-seekers, the paper is correct to say that they can be detained in order to ‘verify their identity and/or nationality’ in the EU’s Reception ConditionsDirective. However, for asylum-seekers who have been fingerprinted already by a Member State and then apply for asylum in a second Member State, the Commission fails to mention that the Dublin rules apply. They permit detention only where there is a ‘significant risk of absconding’, which does not automatically follow from a refusal to be fingerprinted.

Fifthly, the Commission proposed a Decision on relocation of asylum-seekers between Member States. This is the only one of this week’s proposals which would (if adopted) be legally binding. Like most Commission proposals, this needs a qualified majority of Member States to support it in the Council; unlike most EU law, the European Parliament need only be consulted. It seems from press reports that there will be a ‘blocking minority’ of Member States preventing its adoption, unless some of them change their position. It’s also possible that it will be agreed, but with major changes. But for now, let’s look at what the proposal would do if adopted.

The main thrust of the proposal is to derogate from the usual ‘Dublin’ rules as regards Italy and Greece, and distribute about 40% of the asylum-seekers which would normally be the responsibility of those Member States under the Dublin rules to other Member States. Due to opt-outs, the other Member States will not include Denmark or the UK, although it seems possible that Ireland will opt in. The proposal also will not apply to the non-Member States bound by the Dublin rules (Norway, Switzerland, Iceland and Liechtenstein). It would effectively be a regime within a regime, with only 25 or 26 of the 32 Dublin States applying it.

The relocated asylum-seekers will be split 60/40 between Italy and Greece, and will be allocated to other Member States on the basis of the criteria set out in the Annexes to the proposal. Relocation will be selective, applying only to those nationalities whose applications have over a 75% success rate in applications for international protection. It’s clear from the proposal that the Commission believes that only Syrians and Eritreans will qualify. The Member State of relocation will be responsible for considering the application, and asylum-seekers and refugees will not be able to move between Member States, in accordance with the normal Dublin rules. (After five years’ residence, refugees can move between Member States, according to the EU’s long-term residence Directive).

Besides the nationality criterion, who will be relocated? Asylum-seekers must be fingerprinted in order to qualify. The selection of asylum-seekers will be made by Italy and Greece, who must give ‘priority’ to those who are considered ‘vulnerable’ as defined by the EU reception conditions Directive. This refers to a long list of people:

‘such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, victims of human trafficking, persons with serious illnesses, persons with mental disorders and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, such as victims of female genital mutilation’

Implicitly, the other Member States must accept the asylum-seekers nominated by Italy and Greece, except that they can refuse relocation if it’s ‘likely that there are national security or public order concerns’.

What about the asylum-seekers themselves? There is no requirement that they consent to their relocation or have the power to request it. The proposed Decision only requires Italy and Greece to inform and notify the asylum-seekers about the relocation, and the Commission suggests that they could only appeal against the decision if there are major human rights problems in the country to which they would be relocated. So neither the relocation itself, nor the choice of Member State that a person will be relocated to, is voluntary. This is problematic, since forcing asylum-seekers to a country that they don’t want to be in is one of the key problems facing the Dublin system already.

Of course, it’s possible that like children left in an orphanage who weren’t picked by new parents, there will be rather more asylum-seekers disappointed that they were notselected for relocation.  Do they have the right to a legal challenge? Arguably yes, to the extent that Italy and Greece select people who are not vulnerable for relocation, in light of their legal obligation to select vulnerable persons as a priority.

Asylum-seekers do have the right to insist that their core family members (spouse or partner, unmarried minor children, or parents of minors) who are already on EU territory come with them to the relocated Member State. It’s not clear if Member States could count the transfer of family members towards their overall quota. If the asylum-seekers obtain refugee status in the State of relocation, they could also apply for family reunion under the EU’s family reunion Directive.

Similarly, it’s not clear if Member States can count towards their overall quota asylum-seekers who would normally be the responsibility of Italy and Greece, but who have already found their way on to another Member State’s territory. This might be termed relocation sur place. According to the rules in the Decision, this would in any event depend upon the willingness of Italy and Greece to designate such asylum-seekers for relocation. And as the Commission notes, persons who would already be the responsibility of Greece cannot be sent back there anyway due to the collapse of the asylum system in Greece, according to the CJEU ruling in NS (the position regarding Italy is more qualified: see thediscussion of last year’s Tarakhel judgment). Of course, it is possible that the relocation of significant numbers of asylum-seekers away from Greece will contribute to solving the systemic problems with that country’s asylum system in the foreseeable future.

Overall, if the Council is willing to agree to the proposed Decision, it is likely to make a significant contribution to solving the problems with the asylum systems of some Member States, although only the more significant review of the Dublin rules promised for 2016 (or a profound improvement in the situation of countries of origin or transit) could provide a long-term solution. It is very striking that while this proposal effectively admits that the Dublin system is profoundly dysfunctional, the separate set of fingerprinting guidelines issued on the same day adopts a tone of head-banging savagery to try and get that system to work.

A final question arising is the impact of the proposed asylum measures on the UK. While the UK has an opt out, some suggest that all asylum-seekers who reach the EU could ultimately obtain EU citizenship and then move to the UK. However, the proposed Decision only relocates asylum-seekers who have already reached the EU, rather than increase the total number of asylum-seekers. Furthermore, a recent fact check suggests that only a modest number of non-EU citizens get Italian nationality each year, and that Italy only grants refugee status to a handful of people. Indeed, the only prominent Italian citizen with an African background currently in the UK is Mario Balotelli – but I don’t want to intrude into the private grief of Liverpool football fans.

The European Agenda on Migration: four announcements and a funeral ?

published HERE on  2 June 2015


by Henri Labayle, CDRE

Rarely has a Commission Communication been so eagerly anticipated. The “European Agenda on Migration” (COM (2015) 240)was presented with great pomp on 13th May 2015 by the two vice-presidents of the Commission in connection with the dossier and the Commissioner.

Rarely has a declaration of intent of this nature produced such a virulent media and political outcry either. The searing vociferation is compounded by the fact that its authors express themselves at length on subjects they know nothing about, most notably the French political class. It has also given numerous opportunities for minor powdered Marquis to hold forth on the ‘human rightsism’ of the Commission, with no regard of the values, the rights and the traditions of the Republic which they claim to possess.

The announcement of the deadline had worked as a shield for the Community’s executive over the last few weeks in order to weather the storm of the crisis in the Mediterranean whilst also providing protection against the gales blowing from the British election campaign. It was time to deliver and the text arguing the Commission’s proposals is now on the European Union’s table.

Since then, the Commission has hastened, and it is an understatement, since a few texts have not been formally adopted, to demonstrate that it was working on it by calling a new press room, on may the 27th,, making things clear.

The Communication (2015) 240, even after a second reading, is not convincing. Quickly, doubt creeps in especially because the precipitation of declarations maintains the confusion on the proposed measures, the numbers and roles of stakeholders. Could this apparent desire to combat the most glaring flaws in asylum and immigration policy not, after all, be a pretext or an avoidance strategy destined to leave it up to the Member States to take responsibility for policy failure in the eyes of the public? In other terms, does this noisy announcement not prefigure a funeral in due form at worst and, at best, a result far below the needs ?

1. Four ‘pillars’ under the guise of policy

The European Agenda on Migration reveals the political engagement of Juncker, candidate in 2014. It also reveals the commitment of the President of the Commission to give political meaning to his actions as he had indeed previously announced. In a somewhat curious demarcation between the “immediate” and the long term, the discourse is far from seductive. Neither the appellation of this European Agenda on “Immigration” which surprisingly does not mention “asylum” nor its thematic structure provide for a convincing Commission Communication.

a.  reprehensible perspective

Let’s begin with the immediate. The Mediterranean crisis is not given its true name- that is to say an asylum crisis well before an immigration crisis; this brutal pressure shows the limits of the Union’s border control policy. Inscribed in a shift of global migratory inflow, nothing would suggest that it would cease thanks to some additional budget and technical injections. Also, we struggle to understand the interest in separating and highlighting immediacy from long term goals except if it is to give credence to the idea that the causes may disappear abruptly which is entirely unlikely. The choice of presentation blurs the guidelines of the actions proposed by the Commission.

Next and most especially it must be pointed out that asylum policy is in no case a component of immigration policy. This is indicated by treaties without a trace of doubt. This policy expresses an obligation which weighs not just on the Union but also on the Member States having individually subscribed to the international engagements under edict, from Geneva to Strasbourg. All of the British blustering makes no difference to the legal reality: it is not possible to “send back” persons seeking protection with or without the Union. Nor is this blustering all that credible in light of the self-proclaimed advantageous presentation as an island ‘fortress’ when in fact it is known that the United Kingdom on its own annually issues 700,000 of the 2.3 million residency permits granted in the Union.

Grouping together these two distinct chapters “common asylum policy” on one side and “common immigration policy” on the other is a political error. By doing so it gives credence to the idea that accepting or denying a person seeking protection or an ordinary immigrant falls under the same procedure. However what constitutes an obligation for the first case is merely optional for the second one.

This amalgamation by the Commission creates a disastrous political effect. It renders any effort at trying to educate with regards to national public opinion which already has a set view on the matter and refuses obstinately to listen to the necessity of protection or even to open the door to the continent to anybody whatsoever.

b.  prerequisite: immediate action in the Mediterranean

The European Agenda claims to be providing a one-off response to an emergency situation whilst testing potential solutions for the future. One can understand the Commission wanting to assume its role in the management of a crisis which we already witnessed on 23rd April how the European Council then the European parliament took notice of the tragedy under way.

Yet the reach of this discourse is clouded. How is the determination to chase after smugglers and save lives, to support frontline States’ efforts by allocating an extra almost 90 million euros for these chapters not an integral part of a solid, lasting migration policy in the Union? Such schemes must be intended as permanent and it is entirely doubtful that the current budget increase for certain agencies will be renewed due to the lack of true awareness and the rapidly worsening context.

In fact, the Mediterranean crisis carried to breaking point as it is today is a testing ground and prefigures long-term solutions. We will come back to this point with regards to relocalisation. Actually, are we not witnessing a rise of the Union, particularly its agencies, due to the inability of some Member States to manage migration ? It is doubtful that this “communautarisation by default” does not cause a strong reaction from other Member States, particularly France and the Federal Republic … It is one thing to tolerate it about crossing borders and Frontex and another to accept it about asylum considering international protection obligations involving each member State individually …

c. First pillar: reduce incentive of irregular migration

It indicates the order of political priorities within this common policy even if the listing of the envisaged means contains absolutely nothing new and if its poverty occasionally enhances a reading that merely highlights what already existed.

Consequently, presenting sending a European migration liaison officer to high tension countries as some sort of progress likely to reverse the flow of migration brings a smile to our lips… Aligning millions of euros in an effort to prove the need of Mobility Partnerships for which we have yet to find out their real usefulness and Regional Development and Protection Programmes (RDPP) for North Africa and Horn of Africa are again far from convincing and just part of a political public relations spiel.

The same holds true when the Commission gives in to its “action plan” addiction so as to propose measures aiming to make smuggling and trafficking a “high risk and low return”, criminal activity. These empty words have been heard time and time again within the Union circles. The idea itself is rather promising; fighting traffickers on the financial terrain as was the case for fighting certain forms of terrorism. However one remains perplexed as to how this could be implemented in an efficient way.

These pious vows correspond perfectly to the hollow wishes heard thousands of times before, “an action plan will be brought forward and the goal must be to transform smuggling networks into ‘high risk and low return’ operations and to address long term root causes of forced and irregular migration through development cooperation and humanitarian assistance”

On the contrary, modifying the legal basis of Frontex and thus reinforcing its capacity to initiate return missions would seem like a far more interesting proposition. Frontex is often pilloried because its task of monitoring and returning irregular migrants is far from gratifying. Yet this agency successfully carries out its missions and all that is its limiting further success is the parsimonious approach with which the Union’s States devote financial means to it.

d. Second concern: border control

The second “pillar” of the Agenda simply refers to article 77 TFUE which mentions an “integrated management system for external borders”. It is politically linked to the objective of “saving lives”; it has been all too clear in light of recent current affairs how slow the members of the Union were to stand up and take notice. The Communication is not overly innovative on this point. All that is mentioned is the need to consolidate intervention standards on the ground alongside a promise to “launch a broad debate” over setting up a European system of Border Guards. None of this is likely to break the budget.

As for the rest, using new technologies to identify risks or manage “smart borders”, or, notably, strengthening Frontex’s capacities and mandate, none of this is really anything new under the sun.

What is probably more significant is the open backing of third countries via the Action Plan with Africa and in particular Regional Development and Protection Programmes which have been allocated an extra 30 million euros. The rumours surrounding this issue have been confirmed with two States being focussed on:   Niger and Mali. With a view to improving safety for migrants and combatting against smugglers these proposals seem quite astonishing considering the situation of the latter State.

Another now officially confirmed innovation is the backing of third States which will undoubtedly take the non-experimental form of a “pilot multi-purpose centre” and is to be set up in Niger thereby reigniting the debate dear to Tony Blair’s heart some ten years ago over externalisation of asylum policy. It should, according to the Commission, provide “provision of information, local protection and resettlement opportunities for those in need’” In other terms, circumventing migrants’ onward journeys by offering “assisted voluntary return options” for those who understand what that entails. With the support of the IOM and especially the UNCHR which has not opposed this scheme as a matter of principle, it would appear in all likelihood to become a key area of the Union’s policymaking.

e. “Solid” common policy on asylum

Yet another astonishing promise in light of the enormous investment in this common policy; two generations of successive texts have thus first laid the foundations then corrected the major flaws of the common asylum system.

In affirming that high priority will be given to setting up an integral and coherent Common European Asylum System it is in fact the same as listing all of the breaches for which the Commission seems to be unaware that contentious proceeding exists in order to reach outcomes.

Yet this prodedure would be of some use when the Communication states, for example, that progress could be made with “guidance, notably by encouraging States to systematically identify and take migrants’ fingerprints”, which is a clear reference to Italian practices.

The Commission thus proposes on may 27th guidelines on fingerprinting for the EU’s common asylum system to work effectively. Because“migrantsneed to be systematically fingerprinted upon arrival”, the Commission services have publishedguidelines for Member States setting out a best practices approach for fingerprinting newly arrivedapplicants for international protection. « Hotspot » teams from EASO, Frontex and Europol will workon the ground to swiftly identify, register and fingerprint incoming migrants and assess those whoare in need of protection”. We are impatient to read a legal analysis of that option from the member States’ point of view as well as of the applicants…

In the same vein, the Commission refrains from a particularly deep analysis of the asylum figureswhich Eurostat has just published. By taking a closer look at the figures what quickly becomes clear is that the Union and individual States are faced with the same problem; a high concentration of applicants is found in the same zones. In France, for example, Ile-de-France and the Lyonnaise region bear the brunt of the pressure. What can also be seen is that recognition rates are somewhat variable- Eurostat queries the Hungarian recognition rate of 9%. The fluctuation among the types of protection granted to applicants of the same nationality depending on Member States could also be deemed surprising. None of this is even mentioned.

Among the reasons which inspired the Commission to write the Communication are these figures which reveal the internal divisions within the Union. Although European asylum law is presumed to be harmonised, deeply worrying questions remain and no geographical responses are received.

So, for the reasons that we are well aware of, the number of Syrians has quadrupled since 2012 and they now make up the largest contingent of asylum beneficiaries. Nevertheless, 60% of the 68,000 persons are placed under the protection of either Germany (27,500) or Sweden (16,800) and they are not the top nationality protected in France or in the United Kingdom. Similarly, though Eritrea (14,600 refugees) is the second most protected nationality in the Union, more than three quarters of the Eritreans obtain asylum in just three States: the United Kingdom, Sweden and the Netherlands. Is it any wonder to find them in Calais once they have been informed that 183 of their compatriots’ asylum requests were granted in France in 2014?

Rather than attacking the shortcomings of Member States, it is better to stigmatise individuals and the “abuses of the asylum system” and propose to cut back on its impact by, for example, reopening the dossier on specific provisions on safe country of origin as found in the Asylum Procedure Directive…

f. New legal migration policy

Stating this in the midst of an irregular immigration crisis cannot be considered as overly deft politically, despite the terms of article 79 TFUE. The presentation of this “new” policy seems somewhat excessive; how can it be qualified as “new” when in fact it does not or barely exists as a Member State retains the right to define the total number able to access its respective job market?

And yet, its main goal is obvious. It has been repeated for years by the Commission, confirmed by demographers and deliberately ignored by Member States which have firmly shut their eyes when faced with the demographic decline. In contrast, one cannot help but smile upon seeing the ‘Blue Card’ directive being brought back ou; aside from the 11,580 cards issued in Germany out of a total 12,854 in the entire Union in 2013, which other State issues any?

As for the wish to set “new priorities for our integration policies”, once more, how is it possible to renew something which does not or just barely exists? The driving ambition of the Commission would seem purely to render “remittance transfers cheaper, faster and safer.” What an utter lack of seriousness…

2. The outcome, a programmed burial ?

The European Agenda on Migration displays two sides. That of a recycling operation of various measures, all of which had initially proven to be more or less complete failures. The other side is that of a new and strong political message querying the community of the Member States with no regard for the public opinion held in each state. It receives as such the strong and justified support of NGOs and UNHCR.

This leads to some confusion in its reading. How can the clear discourse of the chief of the Community’s executive be criticised radically when he is finally speaking from a solid political standpoint (and it was high time to do so) in terms of solidarity? It has to be said that this solidarity is commendable as it is attempting at least to provoke real political change even if that enflames public opinion.

a. Dissimulating an impasse

The spectacle of irregular migrants and asylum seekers displays the blatant failure of joint policy. Any semblance of this was abandoned by the Commission after the only great commissioner that the JIA has ever known, Antonio Vitorino departed. Since then, verbiage, uncontrolled technocracy, standardised discourse and a surreal management culture have taken the place of any form of political direction. The latest Commission follows on in this tradition from what we can judge.

Between 2012 and 2014, in two years, the number of asylum seekers in the Union doubled, jumping from slightly more than 300.000 requests to just over 600.000. This explosion poses major challenges for the Union and as we saw above, it reveals for all to see the weaknesses and lack of cohesion within it. And yet no political lesson is publicly drawn from this.

So, the Dublin system, the cornerstone upon which the Common Asylum system is built, claims that since Schengen (its heir) the Member State in which migrants arrive in the Union is responsible for the processing of those migrants. This thereby establishes, on the face of it, the bulk of the pressure on the State Members situated on the periphery of the Union. But, if we are to look a little more closely at the asylum figures in order to gauge more than just who does the most and who does the least, much can be gleaned. Of the four Member States currently receiving 71% of asylum requests (Germany, Sweden, Italy and France), just one country, Italy, is in direct contact with the new arrivals. The failure of the Union’s strategy is thus based on figures without it causing much concern because, despite its flaws, the system continues to be accepted by the States, including those in the second line which refuse any change to it.

Proof that the Commission refused to shoulder its responsibility was already evident in the polite silence heard over the dysfunctions of its cursory evaluation carried out during the revisions of the text in 2008, despite the criticisms of Parliament at the time. The problems remain and the figures are grim: the rate of asylum seekers transferred to the State responsible in accordance with the Dublin system barely reaches 16% annually in France, according to the last report from the French Senate.

Following the old saying, ‘never change a losing team’, the Agenda has laid its cards on the table; it will only be at the beginning of the upcoming evaluation of Dublin III, in 2016, that the Commission will “determine whether a revision of the legal parameters of Dublin will be needed to achieve a fairer distribution of asylum seekers in Europe”…

As for irregular immigration, Eurostat’s figures are also grim; the Commission is well aware of this fact when it quotes its figures: out of the 425,000 return decisions delivered in 2013, only 167 000 were correctly enforced. After having weathered the incomprehensible thunderbolts of those who had taken umbrage over the harmonisation of conditions in which returns must take place, the Union has not really tackled the problem which contaminates the entire issue, leaving judges to weave and unweave hesitant jurisprudence.

Yet, putting names and faces to the focal point of grievances surrounding this blockage is now possible by, for example, listing the third States which are reticent in assuring the cost of taking back their own nationals who reside irregularly in Europe. In descending order Morocco, Pakistan, Albania, Russia, and India could thus represent grounds for diplomatic consideration. This is not impossible. So it can be noted in the Agenda that the Commission is at last envisaging modifying its practice of readmission agreements by now focusing on nationals and ceasing to believe that third States will indeed cover costs of foreign nationals having transited their territory seeing as this creates tension in interior affairs.

b. a protection against failure

One can wonder about this. Due to the sharpness of the President of the Commission’s political intelligence alongside there being not a shadow of doubt over his perfect knowledge of the European context the risks involved in certain leading proposals cannot be ignored. But a double-edged discourse confuses matters and inevitably leads either to failure of this attempt or to empty it of its scope.

As we denounced above, the initial amalgam involves fostering a detestable ambiguity between asylum seekers and ordinary migrants both from a political and technical standpoint. Those applying for protection are reduced to the lowest common denominator, stigmatised and they therefore become the primary victims of this amalgamation.

And now today it is precisely the first tangible result of the Commission’s communication. The press has unanimously and blithely mixed up the numbers in the proposals of the Commission which exclusively deal with asylum seekers. However the press mixed up these figures with those of ordinary irregular migrants. This misinterpretation induced by the biased presentation of the Agenda was of course immediately relayed by the political class in its entirety and, within a few member states such as France, the confusion is obvious as the various interpretations of the President and the Prime minister clearly show.

A second trouble reigns over the impact created following the Commission’s announcement of the proposals of “relocation” and “resettlement”. Yet the idea is very simple: it refers to either people who are already in the Union (relocation) or those who are still outside of it (resettlement). The European Agenda in fact outlines two distinct measures which concern totally different situations and the vagueness of what is said combined with the mix-up surrounding by the word “quotas” is far too obvious to have escaped the authors’ attention. Clarifying and completing things was probably the aim pursued by the May 27th press room where the announced texts were not available and, for the Recommandation, not even formally adopted !!!

The first proposal is entirely new. It involves instigating a temporary “resettlement” procedure in the case of applicants who “are in clear need of protection”. This proposal would be justified under the principle of solidarity of article 80 TFUE so as to “ensure the fair sharing of responsibility between all of the Member States”.

The Commission thus proposes “triggering the emergency response system envisaged under Article 78(3) TFEU”. This is in fact a preconceived lie; the treaty does not to date contain an “emergency response system” but on a much more modest scale, an emergency “procedure”. Indeed, the procedure states that “in the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament.” No more, no less and by qualified majority. Hence a more careful formulation since then, that of a “Proposal for provisional emergency relocation measures”.

The Commission shows no fear in anticipating the agreement of the Member States in Council; this is yet another highly revealing novelty. The “relocation” would appear to concern in all likelihood applicants who have already entered the Union’s soil, illegally as the Commission said it. Logically enough but rather arbitrarily, the Commission adds that those eligible for relocation are therefore applicants with nationalities who have an average EU recognition rate for international protection that is equal to or above 75%, according to the latest available EU-wide Eurostat data, in other words, Syrians and Eritreans.

It would be established on a redistribution key based on criteria such as GDP (40%), size of the population (40%), unemployment rate (10%) and the past number of asylum seekers and of resettled refugees (10%). The receiving Member State will be responsible for the examination of the application in accordance with Union law. Let us point out in passing that each state is trying to dispel the “Land of Asylum” image that France once held and now belongs to the past. It is currently fighting to obtain that the number of applicants, which is to its avantage, accounts finally for 30% of the criteria …

The system is a “ proposal for a Council decision establishing provisional measures in the area of international protection for the benefit of Italy and Greece” COM (2015) 286, for two years. The Commission rejects Malta from the device without really convincing if one thinks in terms of percentage, no more than the indifference of the Commission with regard to those « relocated » who would not accept the destination assigned …

Obviously the three Member States concerned by the opt-out provision with regards to certain policies of the Area of freedom could choose to not be involved in the deliberation of the scheme which is indeed the case for the United Kingdom as it has already announced.

Technically, it is a a limited and temporary derogation fromcertain provisions of the Dublin Regulation, in particular as regards the criterion for determining theMember State responsible for examining an asylum application. Will it receive the consent of the States supporting the text who refused any substantial change ?

In a second time, on May 27th 2015, the Commission judged it necessary to give detailed figures, which it had not two weeks earlier. First, concerning the volume of the concerned persons : there would be 40.000 of them. that is 40% of the total number of applicants who entered irregularly Italy and Greece in 2014. The distribution of the 40,000 total between the two countries, respectively 24,000 from Italy and 16,000 from Greece, is based on their respective shares of the total number of irregular border crossings of persons in clear need of international protection over the last year.

rel en

In return, the States accepting relocation will receive a €6000 lump sum for each relocated person, under the Asylum, Migration and Integration Fund (AMIF), an extra €240 million in dedicated funding to support this 24 month scheme.

And the Commission does not leave it at that. On May 13th, it has even stated that it will table a legislative proposal after 2015 to render such a system “permanent”, “automatic” and “mandatory” (COM (2015) 240 p. 5). All of this in total contempt of the political balance of power and the sovereignty of the Member States which the rule of law of the Union cannot constrain to this point. Is this just a matter of reinforcing the attractiveness of an initiative which already gave rise to such strong opposition among Member States?

A certain amount of surprise arises from the political and technical backing of this sequence. It is particularly true with regards to the rigid stalemate of the Commission over an existing tool, specifically designed for emergency situations. In fact, directive 2001/55 of 20 July 2001, on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons. This text was drawn up, passed and implemented whilst war was waged in Kosovo: it provides a yardstick for Member States’ tolerance levels alongside the upper limit of their understanding. The Directive grants temporary protection in the Union … on a voluntary basis of States, as indicated in article 26. The Agenda does not mention this even once.

Hard-line attitudes of this nature create doubt especially concerning an institution which has hardly been renowned for its political courage. It is difficult to understand why an institution determined to have this type of proposal accepted would label and present it these terms… Using this type of argumentation, the proposal is doomed to fail before it even gets off the ground. There is no way of avoiding that this is in fact the exact goal that the Commission had in mind- being shot down in the line of duty due to overly generous proposals whilst also provoking a political electric shock…

Anyway, we will go back to it later in detail in these columns.

The second major proposal is totally different and concerns “resettlement” of asylum seekers. In refugee law the resettlement procedure is absolutely standard. It is now both known and used in the European Union COM (2009) 447 which launched a recent Programme, even if it is only on a small scale. Resettlement of refugees is voluntary. Currently, only 15 EU Member States have resettlement schemes, with three other Member States resettling onad hoc basis. The remaining Member States do not participate in resettlement.This allows to measure their enthusiasm and to doubt their changing mind …

Persons who “clearly need international protection”, are transferred from outside of Europe, that is to say from a third State to a Member State which agrees to accept the aforementioned persons, on the United Nations High Commissioner for Refugees’ recommendation who acts as an intermediary.

It is no longer a question of a beating stick and obligations but more of a carrot. A simple “recommendation” from the Commission will enable a new “resettlement programme” to be set up which will apparently be added to the existing one and on top of that will be matched with a financial incitement of fifty million euros over the next two years. The distribution key of these applicants would be the same as for “relocation”, it would remain voluntary, with possible participation of the associated states.

The total number specified is 20,000 people over this period of two years. The cries of outrage emitted from the majority of the Member States give cause for some surprise. In fact 10.000 asylum seekers per year will be distributed in the Union, adding to the 500 million inhabitants of the EU and this figure is given when 2014 saw 6,380 people resettled in the Union… The projected figures drawn up by the Commission under the criteria discussed above produce results which do not seem to deserve the outcry provoked. The table below shows the current annual resettlement figures alongside those suggested by the Commission and we can thus clearly appreciate the ridiculousness of them with regards to resettlement needs which, according to the High Commissioner, are somewhere in the vicinity of millions :

Res en

In other words and assuming that it will be accepted, the supposed effort that the Union is making is far from sufficient in light of the tragic events taking place for the millions of Syrian refugees fleeing death or persecution, in Turkey, Jordan, or Lebanon. Where Germany has announced admitting 10,000 refugees, France has spoken of fewer than a thousand…

The reception of the European Agenda and more specifically of the proposals for distribution of asylum seekers is worthy of the paradigm change which it outlines. There is absolutely nothing surprising about NGOs and the High Commissioner for Refugees approving this direction. Nor is there anything surprising about the fact that Hungary, Poland, the United Kingdom and France (in a more ambiguous fashion) are against it while the other countries are keeping a prudent silence. In fact, it is the sovereign capacity of each State to decide to admit migrants in need of protection which is at question. Common reading of grounds for granting protection, mutual acknowledgement of decisions and judicial review are all stages that have to be traversed sooner or later. Appearing to be under no illusions as to the likelihood of these proposals being accepted, the president of the Commission has chosen to advance onto the terrain of provocation. Despite the implicit consent of the German delegation- including in Parliament- it is not yet the right time to move towards the next stage. Never mind for the Mediterranean graveyard, appearances have been kept up.