Enhancing the common European asylum system and alternatives to Dublin

SUMMARY OF AN EXTERNAL STUDY REQUESTED BY THE EP LIBE COMMITTEE (THE FULL VERSION IS ACCESSIBLE HERE – manuscript completed in July 2015)

Authors : Prof. Elspeth Guild, Dr. Cathryn Costello, Ms. Madeline Garlick, Dr. Violeta Moreno-Lax, with the participation of Dr. Sergio Carrera. (

Introduction: Key question

Throughout the evolution of the Common European Asylum System (CEAS), the Dublin system of responsibility allocation for the examination of asylum claims has been, it is claimed, its ‘cornerstone’. This is despite it being neither fit for its intended purpose nor designed as a solidarity measure, as multiple reports have demonstrated, including the 2014 study on New Approaches, Alternative Avenues and Means of Access to Asylum Procedures for Persons Seeking International Protection (the ‘2014 Study’). Judicial decisions have, in turn, highlighted that the Dublin system violates fundamental rights in several respects. Yet, the tendency is towards its ever more coercive application, regardless of the administrative, financial, and human costs.

Against this background, this study urges a fundamental rethink. The study is premised on the ethical and practical importance of avoiding excessive coercion of asylum seekers and refugees. Any reforms should bear in mind the significance of avoiding coercion, in order to foster trust between asylum seekers and refugees and the authorities, and to ensure that fundamental rights are respected, protected and promoted. Avoiding coercion is also important to deliver the workability of asylum systems and any responsibility allocation mechanisms that are developed to replace or complement the Dublin system.

The text proceeds in three sections. Section 1 demonstrates that refugees’ dangerous journeys to the EU are necessitated by EU visa policies and carriers’ sanctions. Alternatives means of ensuring safe and lawful access to the EU are set out. These are urgently required if we wish to avoid those seeking refuge dying on their way to Europe, whether in transit by sea or by land. Safe and lawful access would greatly reduce the demand for the services of smugglers, and thereby enhance trust between asylum-seekers, refugees and the authorities in EU Member States. It would also contribute to more planned and orderly arrivals in the territory of the Member States. Section 2 explores mutual recognition of positive asylum decisions, which would alleviate some of Dublin’s shortcomings and help realise the ‘common status valid throughout the Union’ the EU is obliged to adopt as part of the CEAS under the EU Treaties. Section 3 discusses alternatives to the Dublin system, thereby contributing to the wider debate on its replacement.  Continue reading “Enhancing the common European asylum system and alternatives to Dublin”

“To quota” or “not to quota”? The EU facing effective solidarity in its Asylum Policy

ORIGINAL PUBLISHED ON EUROJUS (13/07/15)

by Marco Borracetti

1. Introduction

The night between the 18th and the 19th of April 2015, more than 800 people perished in the Sicily Channel, in the umpteenth shipwreck in the Mediterranean Sea, in the attempt to reach Italy and Europe for a better life. The majority of them were coming from lands were war, dictatorship and violence are everyday reality.

To face this ‘emergency’ the EU Institutions decided to launch a new approach, trying to find an immediate solution to the challenges of migration from the African coasts and to develop a new step in the EU migration policy.

The aim of this post is to reflect on the relocation system proposed in the European Agenda on Migration, on which the Member States seem to have reached an agreement in the last Justice and Home Affairs Council, of the 20th of July 2015.

2. The relocation mechanism

In general, addressing irregular migration in Mediterranean concerns also on meeting the need of the people in need of international protection, with a common and shared EU approach.

The aim to have a quick mechanism – based on binding quota for every Member State – to relocate international protection seekers as soon as possible justified the adoption of a temporary procedure (proposal for a Council Decision of 27 may 2015, COM(2015) final) instead of the procedure established in the Regulation 604/2013, which apply from January 1st, 2014. The four pillars characterizing the decision are the support to Italy and Greece; its provisional nature; the need to manage an emergency situation, due to a sudden inflow of third country nationals in the European territory.

Due to the particular characteristics, and above all because of its binding nature, the opposition of some Member States was immediate. The binding nature thereof is a fundamental requirement to give the possibility to the plan to start materializing.

A different option could have been to consider the quota in the annex of the proposal as a minimum to be respected in the case agreement among the concerned Member State cannot be achieved.

With this type of solution two different possibilities exist: negotiations among Member States will be the main way to follow and the decisions’ criteria of distribution will apply only in the case of failure of negotiations.

2.1 In search of the right Legal Basis: the ‘sudden’ question Continue reading ““To quota” or “not to quota”? The EU facing effective solidarity in its Asylum Policy”

The Calais crisis: which Member State is responsible?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (31 July 2015)

by Steve Peers

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

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

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

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

Immigration and asylum law

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

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

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

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

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

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

Free movement law

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

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

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

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

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

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

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

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

The impact of the EU law on Italian criminal procedure law in investigations on EU fraud

ORIGINAL IN ITALIAN.

(Translated by Dalila Delorenzi, FREE-Group Trainee)

by Andrea Venegoni (*)

A reflection on the issue of the influence of European law on procedure criminal law may  instinctively lead to think of the most recent developments in case law at European level that have affected and are affecting also the typical categories of the Italian procedural system.

As an example, the issue of “res judicata” can be taken into account. It is common opinion that its binding effect is gradually eroding as a result of transposition in the internal system of jurisprudential principles established by the European Courts (e.g the cases Dorigo or Scoppola ). Another example may come from the “ne bis in idem” principle which is gradually coloring of meanings that were unthinkable a few years ago, also thanks to the role of supranational courts.

But, to be honest, if that had been the subject of my speech, the same would not be fully consistent with the title of the seminar that refers specifically to the influence of the EU law on the domestic criminal procedure law.  Indeed in the above mentioned evolutions the ECHR system – which as it is known, is something other than the European Union system – has played and still plays a fundamental role. In this case, therefore, the title of the seminar should have referred to the “European” law in general and not just that of the EU.

I therefore focused my attention on EU law and its impact on criminal investigations in fraud matters within the Community, not only for formal reasons, because it was the specific scope of the seminar, but also for another more substantial reason.

More precisely, all legislative and jurisprudential developments occurred in criminal law and its procedure by supranational European legal systems are substantially aimed at creating a common space of justice, with a view to recognise guarantees, common rights and for the purposes of a better circulation of evidence. If this is true, it does exist an area, a sector, where this process has been already realised or, at least, realised in a better way than elsewhere.

This is precisely the field of protection of the EU financial interests. In this sector, since the late ‘90s the European Union has put in place a series of legislative instruments to assist the investigations, and in particular the cross-border enquiries, and at the same time to protect the rights of the people involved, with no equal compared to any other field. As such, if the European Union is informed by the will to create, among other issues, also a common space of justice, both criminal and civil – as said in the founding treaty (i.e. Maastricht Treaty, 1992) – then we may affirm that, since more than 16 years, this purpose has been largely achieved, with specific modalities, in the field of the protection of EU’s financial interests (hereinafter “PIF Area”), even if just few legal practitioners have realised it.

This was because the PIF sector has always been essential to the existence of the Union and for the accomplishment of its purposes. Without effective protection of its own finances, the Union might not have the necessary funds not only to manage its administration, but also to grant them to the States or other beneficiaries. Indeed this is necessary for the realization of the great goals the Union intends achieving – sometimes with mixed success – Europe wide and worldwide, such as social cohesion and economic development, the progress of scientific research, environmental protection, the fight against poverty in third countries.

Therefore, the protection of its resources has always been essential for the Union, and since the conducts affecting such interest may constitute both irregularities at the administrative level, and criminal offenses, the relevant legislation at European level has always unfolded in between the so called First and Third Pillar in the European institutional framework after the Maastricht Treaty. In simple words, the First Pillar covered interventions in the Union’s own policies that did not concern the criminal law; the Third Pillar, on the contrary, was just about facilitating the judicial cooperation in criminal law.

Nevertheless, before going any further, it has to be clarified what the so called “PIF Area” is, to fill of content concepts that otherwise risk to be only theoretical. For the purpose of this presentation, also to avoid getting into technicalities of the Union’s Financial Regulation, with a view to simplifying it may be easier to refer to the Union budget sheet items. Indeed, since the early 70s, the Union has a budget with their own revenues and expenditures.

Revenues consist in customs duties and agricultural levies charged on import and export of goods (the so-called own resources),  a percentage of each EU country’s standardised value-added tax revenue and an additional sum provided by the Member States proportionally to each respective gross national income. Therefore every kind of conduct tending to avoid the payment and collection of duties and agricultural levies affects the EU financial interests. In our system, such conducts constitute the criminal offence of smuggling. Equally, the conducts aiming at evading the VAT payment are harmful for the EU budget. This category includes, for example, the so-called VAT  carousel fraud, which still today are matter of interest for several Italian prosecutor offices, like they have been in the recent years.

Actually, the issue of VAT is very sensitive and it is necessary, for sake of providing with a complete information, to mention that according to an opinion that is strengthening at the level of the Member States, and partly also of the European Parliament, in the negotiations on legislative proposals under way, such tax would be exclusively national, and only indirectly of Union relevance, and for this reason it should be considered outside the PIF area (1). However it must be said that this view is contradicted, for example, in the case law of the Court of Justice that has even recently stated that the application of VAT involves the Union’s financial interests (see Akberg Fransson case C-617/10). Continue reading “The impact of the EU law on Italian criminal procedure law in investigations on EU fraud”